- 21 -
responsible for preventing their production of such documentary
evidence, they would not have waited until their reply brief to
say so.
Moreover, even if respondent had lost petitioners' records,
we still would not hold for petitioners. Rule 1004 of the
Federal Rules of Evidence provides that secondary evidence of a
"writing, recording, or photograph" is admissible if the original
is unintentionally lost. This rule alters the type of evidence
that may be admissible. As the Court of Appeals recognized in
Andrew Crispo Gallery, Inc. v. Commissioner, supra, however, the
rule does not affect petitioners' burden of persuading the Court
as to the existence of asserted facts. See Malinowski v.
Commissioner, 71 T.C. 1120, 1125 (1979). The Court of Appeals’
holding in Andrew Crispo Gallery still leaves petitioners both
with the burden of establishing a basis for us to infer that the
missing records contain the facts as alleged by them and with the
requirement of producing credible evidence that the missing
records were properly maintained and accurately reflected the
facts as alleged. The record before us--consisting of Mr. Weiss'
vague and self-serving testimony--establishes neither. Andrew
Crispo Gallery does not provide taxpayers entitlement to
otherwise unsubstantiated deductions or credits based on the bare
assertion that their records have been lost by the Government,
without further proof. See Rodman v. Commissioner, 542 F.2d 845,
853-854 (2d Cir. 1976), affg. in part, revg. in part and
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