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It is particularly significant that petitioner did not
corroborate his account of the amounts in controversy by
testimony from the person in the best position to do so.
Petitioner deals with this gap in the record as follows:
If there had been any way possible for the
Petitioner’s father to have testified, the contents of
said “ammo-box” would not have been in question. * * *
My father’s testimony would prove favorable.
However, due to his bad health, he wasn’t able to
appear for a deposition (a doctor’s statement has been
provided to the Court) and the Respondent told me she
“didn’t have the means of transportation” to our home
to interview my father.
If it is peculiarly within the power of one party to produce
a witness whose testimony would elucidate a transaction in
controversy, the fact that he does not do so may create a
presumption that the testimony would have been unfavorable.
Graves v. United States, 150 U.S. 118, 121 (1893); Wynn v. United
States, 397 F.2d 621, 625-626 (D.C. Cir. 1967); Pollack v.
Commissioner, 47 T.C. 92, 108 (1966), affd. 392 F.2d 409 (5th
Cir. 1968); Wichita Terminal Elevator Co. v. Commissioner, 6 T.C.
1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947); 2
McCormick on Evidence, sec. 264, at 184-189 (4th ed. 1992). The
power of a party to produce a witness may depend upon various
factors, including the physical availability of the witness, his
amenability to subpoena by the party, the existence of any
special relationship between them, and the nature of the
testimony that the witness might be expected to give. McClanahan
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