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that his brother had no knowledge regarding the value of the
Sentinel EPS recyclers. Moreover, petitioner did not know
whether his brother even talked to anyone in the plastics
industry before giving him “advice”. In addition, petitioner did
not know whether, but rather merely assumed that, his brother
read the offering memorandum before giving him “advice”.
It is noteworthy that petitioner did not call his brother to
testify at trial. Petitioner’s failure to do so gives rise to
the inference that his brother’s testimony would not have been
favorable to petitioner. See Mecom v. Commissioner, 101 T.C.
374, 386 (1993), affd. without published opinion 40 F.3d 385 (5th
Cir. 1994); 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).
Petitioners rely on Dyckman v. Commissioner, T.C. Memo.
1999-79, for the proposition that reliance on a trusted friend or
adviser (such as petitioner’s brother) relieves a taxpayer from
liability for negligence. That case, however, is clearly
distinguishable from the present ones.
In Dyckman v. Commissioner, supra, we held for the taxpayers
on the issue of negligence based on special and unusual
circumstances, including the taxpayers’ complete lack of
sophistication in investment matters and the long-term
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