- 14 - arrangement between two partners, the record shows that was not the arrangement here. Respondent points out that the Schedules K-1 show that petitioner had a beginning capital account for 1989 of $139,590 and an ending capital account for 1993 of $351,003. However, we do not infer from the Schedules K-1 that DRD provided belatedly to petitioner that petitioner and Trisch intended the engineering services to be a partnership activity. 5. Lack of Testimony From Trisch Respondent contends that we should infer from Trisch’s failure to testify in this case that, if he had testified, he would have testified against petitioners. We disagree. If a witness is equally available to both parties and neither party calls that witness at trial, then no adverse inference is warranted. See United States v. Rollins, 862 F.2d 1282, 1297-1298 (7th Cir. 1988); Kean v. Commissioner, 469 F.2d 1183, 1187-1188 (9th Cir. 1972), affg. on this issue and revg. on another issue 51 T.C. 337 (1968). An uncalled witness is not equally available to the party requesting that the inference be drawn against the other party if that witness’ relationship to that other party suggests that the witness is likely to favor that other party. See United States v. Rollins, supra; Kean v. Commissioner, supra; McClanahan v. United States, 230 F.2d 919, 925 (5th Cir. 1956).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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