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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).
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