Edward D. Lang and Sharon A. Lang - Page 14




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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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