Stephen D. Podd - Page 48

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          operation of the taxpayer's trade or business.  Welch v. Helvering,         
          290 U.S. 111, 113 (1933).                                                   
               The test of deductibility of payments made for services is             
          whether the payments are reasonable and are in fact payments purely         
          for services which are actually rendered.  Achiro v. Commissioner,          
          77 T.C. 881, 903 (1981); sec. 1.162-7(a), Income Tax Regs.  What            
          matters is the nature of the services performed, and not the label          
          put on them by the payor and the payee.  Estate of Boyd v.                  
          Commissioner, 76 T.C. 646, 658 (1981) (and cases cited therein).            
          Petitioners bear the burden of proving what portion of the fees is          
          allocable to deductible expenses.  Id.                                      
               Petitioners contend that SCS "rendered continuous, substantial,        
          and valuable consulting services to Powertex" and consulted with            
          Powertex on "marketing, advertising, business planning, customer            
          development, new products, finance, etc."  Petitioners, however,            
          submitted no records in evidence reflecting services performed by           
          SCS.  Mr. Podd testified that he would call Mr. Clark at all hours          
          of the day and night seeking "direction, leadership, [and] knowledge        
          of the industry".                                                           
               Neither party called Mr. Clark to testify at trial.  Respondent        
          contends that petitioners' failure to call Mr. Clark allows us to           
          conclude that his testimony would not have supported their                  
          arguments.                                                                  
               If a witness is equally available to both parties and neither          
          party calls that witness at trial, then no adverse inference is             




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