- 71 -
We also do not find the testimony of most of the fact
witnesses to be helpful as to the critical facts underlying the
issues at hand. Drs. Desai, Hirshkowitz, and Mall and Messrs.
Ankner, Mall, and Ross testified incredibly with regard to
material aspects of this case. They all seemed coached and
frequently displayed during cross-examination (or in response to
questions asked by the Court) a loss of memory or hesitation with
respect to their testimony.26 Each of them (with the exception
of Dr. Desai and Mr. Mall) also acknowledged that he or she had
on prior occasions consciously misrepresented material facts in
order to achieve a personal goal. Their testimony, as well as
the testimony of Mr. Cohen, was for the most part self-serving,
vague, elusive, uncorroborated, and/or inconsistent with
documentary or other reliable evidence. Under circumstances such
as these, we are not required to, and we do not, rely on the bald
or otherwise unreliable testimony of these named fact witnesses
to support our decision herein. See Diamond Bros. Co. v.
Commissioner, 322 F.2d 725 at 730-731; see also Tokarski v.
Commissioner, 87 T.C. 74, 77 (1986). We rely mainly on the
testimony of Mr. DeWeese and the voluminous record built by the
parties through their stipulation of approximately 2,167 facts
and approximately 1,691 exhibits.
26 In fact, petitioners’ counsel Neil L. Prupis (Mr. Prupis)
even acknowledged to the Court that the testifying physicians had
selective memories.
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