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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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