- 48 - 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 isPage: Previous 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 Next
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