Alton C. Bingham - Page 8

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          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.                                      




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