- 22 -22                                                      
             actually paid cash for casual labor, we think that Ferrentino or                                     
             Brittain would have disclosed the payments during the audit                                          
             process instead of waiting until litigation commenced.                                               
                    Petitioners did not introduce testimony of any purported                                      
             casual laborer.  The rule is well established that the failure of                                    
             a party to introduce evidence within his possession and which, if                                    
             true, would be favorable to him, gives rise to the presumption                                       
             that, if produced, it would be unfavorable.  Wichita Terminal                                        
             Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162                                    
             F.2d 513 (10th Cir. 1947).  Donald Travis testified that his son                                     
             Doug was used as casual labor.  Andrew Davis testified that he                                       
             hired his ex-brother-in-law as a casual laborer.  We think that                                      
             petitioners could have called these people to testify, under                                         
             subpoena, if necessary, without undue hardship.  Therefore, we                                       
             presume that these alleged casual laborers would have testified                                      
             unfavorably.                                                                                         
                    Petitioners' most strenuous effort to establish cash                                          
             payments for casual labor took the form of a report (Report)                                         
             authored by Brittain which attempted to illustrate the use by AJF                                    
             of cash payments in very large amounts for casual labor.  If the                                     
             Report were to be believed, AJF expended cash for casual labor in                                    
Page:  Previous   12   13   14   15   16   17   18   19   20   21   22   23   24   25   26   27   28   29   30   31   NextLast modified: May 25, 2011