- 14 - 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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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