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Federal tax lawyer. In response to a question by the Court,
Branton stated that whenever a client asked him whether an item
was taxable, his response has always been that he is not a tax
lawyer, and that the client should get a tax lawyer. Thus,
petitioners could not reasonably and in good faith rely upon
Branton regarding the taxability of the settlement amount. See
sec. 1.6664-4(b)(2), Example (1), Income Tax Regs.
Petitioner testified that he consulted with a tax attorney,
Weir. Petitioner was not certain whether he spoke with Weir on
the phone or consulted with him in person. Nor was petitioner
certain of what documents he provided Weir. We cannot assume the
testimony of absent witnesses would have been favorable to
petitioner. Rather, the normal inference is that it would have
been unfavorable. Pollack v. Commissioner, 47 T.C. 92, 108
(1966), affd. 392 F.2d 409 (5th Cir. 1968); Wichita Terminal
Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162
F.2d 513 (10th Cir. 1947).
Petitioner testified that he consulted with his accountant,
Elms. Elms testified that in his initial interview with
petitioner they talked extensively about the lawsuit. When Elms
prepared petitioners' Federal income tax return for 1991,
petitioners were involved in a bankruptcy proceeding and had
given their only copy of the settlement agreement to that court.
Elms therefore never saw a copy of the settlement agreement.
Petitioner did provide Elms with a copy of the Texas district
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