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evidence that is within his possession or control and that he
implies would be favorable to him, gives rise to the presumption
that, if produced, such evidence would be unfavorable. See
Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165
(1946), affd. 162 F.2d 513 (10th Cir. 1947). Furthermore, the
documentary evidence introduced at trial suggests that
petitioner’s Winer-promoted investments may have been successful
only in producing tax benefits. Thus, on petitioners’ 1982
return, petitioners claimed a partnership loss from Winer
Development Co.; on petitioners’ 1983 return, petitioners claimed
partnership losses from two other oil and gas partnerships. It
is at least noteworthy that petitioners did not report any income
or gain from any partnership on either their 1982 or 1983 tax
return.
In addition, reliance on representations by insiders or
promoters has been held to be an inadequate defense to
negligence. See Pasternak v. Commissioner, 990 F.2d 893, 903
(6th Cir. 1993) (reliance on promoter of tax shelter is not a
defense to the negligence addition), affg. T.C. Memo. 1991-181;
Leuhsler v. Commissioner, 963 F.2d 907, 910 (6th Cir. 1992)(even
an unsophisticated taxpayer may not reasonably rely on “advice”
from a promoter of a tax shelter); Goldman v. Commissioner,
supra; LaVerne v. Commissioner, 94 T.C. 637, 652-653 (1990),
affd. without published opinion 956 F.2d 274 (9th Cir., 1992),
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