-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.
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