Ramon A. Garcia and Bertha E. Garcia - Page 31

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             could have called Mr. Glen as a witness at trial but                     
             chose not to do so.  This creates a presumption that his                 
             testimony would have been unfavorable to petitioners, or                 
             at least suggests that the testimony would not have                      
             supported their position.  See Wichita Terminal Elevator                 
             Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162                 
             F.2d 513 (10th Cir. 1947); see also Simon v. Commissioner,               
             830 F.2d 499, 506 (3d Cir. 1987), affg. T.C. Memo. 1986-                 
             156; Schauer v. Commissioner, T.C. Memo. 1987-237; Song                  
             v. Commissioner, T.C. Memo. 1995-446.                                    
                  Based upon the record of this case, we do not know                  
             whether Mr. Glen or some other member of his firm prepared               
             and signed the subject returns.  Petitioner testified that               
             he did not recollect who signed the returns.  We also do                 
             not know whether Mr. Glen or other members of the firm had               
             experience or expertise regarding qualified plans, such                  
             that petitioners' alleged reliance on their advice was                   
             reasonable.  Furthermore, there has been no showing of                   
             the specific information that petitioners provided to                    














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