- 22 - 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. 162Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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