-8- conjectural or fanciful. McCoy v. Commissioner, 696 F.2d 1234 (9th Cir. 1983), affg. 76 T.C. 1027 (1981). Petitioner bears the burden of proof on all issues in dispute except the addition to tax for fraud. We need not decide whether petitioner had a right, based on the Fifth Amendment privilege against self-incrimination, not to testify at trial because, even if he had such a right, the burden of proof would not change. A claim based on the Fifth Amendment privilege is not a substitute for relevant evidence. United States v. Rylander, 460 U.S. 752, 758 (1983); Petzoldt v. Commissioner, 92 T.C. 661, 684-685 (1989). As discussed below, he did not carry his burden of proving that he did not receive $872,210 of unreported income in 1984. See Petzoldt v. Commissioner, supra. 3. Failure of Both Parties To Call Mr. Lopp To Testify Neither party called Mr. Lopp to testify.1 Respondent's counsel stated at trial that he had been unable to find Mr. Lopp, and that he had outstanding a subpoena issued to counsel for Mr. Lopp to obtain documents from a prior civil proceeding between petitioner and Mr. Lopp. Petitioner argues that if Mr. Lopp had testified, petitioner could have proven that he did not underreport his income in 1984. If a witness is equally available to both parties and neither party calls that witness at trial, then no adverse 1 Eva Lopp died before the trial.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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