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could operate his Oxyfresh business as a trust. However, it is
not clear whether Dunn reviewed the trust documents that Smith
prepared. Mr. Fox testified that he did not give Dunn any
information regarding the trust. Mr. Fox did not rely on Dunn in
good faith because he kept information from him. Dunn attended
the trial but did not testify. We may draw an unfavorable
inference from his failure to testify for petitioners. Wichita
Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946),
affd. 162 F.2d 513 (10th Cir. 1947). Petitioners contend that we
may not draw an adverse inference from Dunn's failure to testify
because the "uncalled witness rule" does not apply in Federal
court. We disagree. The U.S. Court of Appeals for the Ninth
Circuit applied the adverse inference rule of Wichita Terminal
Elevator Co. v. Commissioner, supra, in McKay v. Commissioner,
886 F.2d 1237, 1238-1239 (9th Cir. 1989), affg. 89 T.C. 1063
(1987).
Mr. Fox testified that he asked an unidentified attorney who
specialized in trusts about which form he should use for his
Oxyfresh business. Mr. Fox testified that the attorney's
conclusion was the same as that of Giboney and Dunn. We do not
know the expertise of the people on whom petitioners claim to
have relied, and we do not know specifically what their opinion
was.
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