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around” the question of what petitioner had stated about Frank’s
in a response to an interrogatory. Because of the form of
respondent’s counsel’s questions, and respondent’s counsel’s
tactical decision to not offer into evidence the interrogatory
and petitioner’s written response thereto, the evidence of record
is not clear as to petitioner’s statements in discovery.
However, it is clear that, up to that point in the trial,
petitioner had identified the Frank’s Steaks mentioned in his
diary and on some of the stubs as the restaurant on the border of
Westbury and Jericho. Also, Brent Gindel’s testimony clearly
contradicted petitioner’s testimony. This point was important--
petitioner claimed in his diary to have taken 32 different people
to Frank’s in 1987, and to have spent more than $50 per person
per meal there that year. Supra table 1. Respondent had
informed petitioner some 9 months before the trial that Frank’s
Steaks did not open until 1988, and so was not open on the
relevant 1987 dates shown in petitioner’s diary and on the stubs.
In addition, petitioner had 2 days after the Gindel testimony to
check records or call any of his 32 claimed dinner guests. Yet
petitioner did not take this or any other opportunity to identify
the correct location of the Frank’s Steaks where he took his
claimed dinner guests and incurred his claimed expenses. We
conclude that petitioner did not explain or rebut because there
was no plausible explanation or rebuttal. See Wichita Terminal
Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162
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