James D. Barber and Betty L. Barber - Page 37




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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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