Ronnie F. Judy - Page 14

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            trial, and when this failed, attempted to arrange for his                                 
            deposition, ultimately it was petitioner who bore responsibility                          
            for procuring his testimony, because petitioner bore the risk of                          
            nonpersuasion on the issue that his testimony could have                                  
            elucidated.  Cf. Stoumen v. Commissioner, 208 F.2d 903, 907 (3d                           
            Cir. 1953), affg. a Memorandum Opinion of this Court.  Under                              
            these circumstances, petitioner’s failure to obtain Mr. Judy’s                            
            testimony certainly permits the inference that it would have been                         
            prejudicial to petitioner.                                                                
                  Yet, we need not rely upon such an inference in order to                            
            find in favor of respondent; the evidence and arguments presented                         
            to the Court are sufficient.3  Although respondent presented no                           
            evidence directly contradicting petitioner’s testimony, it does                           
            not follow that petitioner has carried his burden of proof.  See                          
            Demkowicz v. Commissioner, 551 F.2d 929, 931-932 (3d Cir. 1977),                          
            revg. T.C. Memo. 1975-278; Geiger v. Commissioner, 440 F.2d 688,                          
            689-690 (9th Cir. 1971), affg. T.C. Memo. 1969-159; Banks v.                              
            Commissioner, 322 F.2d 530, 537 (8th Cir. 1963), affg. in part                            
            and remanding in part T.C. Memo. 1961-237.  The credibility of                            
            petitioner’s account of the amounts in controversy is weakened by                         
            the stipulated fact that he failed to report sales income for                             

                  3 “The moral force of a judgment of decision will be at a                           
            maximum when * * * The judge decides the case solely on the basis                         
            of the evidence and arguments presented to him”.  Fuller, The                             
            Problem of Jurisprudence 706 (Temp. ed. 1949).                                            

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