Zinovy Brodsky - Page 145




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          before us, we find that petitioner has failed to carry his burden           
          of establishing that $3,000 of the August 28, 1992 deposit at               
          issue represented a personal loan from Mr. Averbach.                        
               With respect to the December 15, 1992 deposit at issue of              
          $20,000, petitioner contends that that deposit, which we have               
          found was derived from a $20,000 check from Mr. Syelsky, repre-             
          sented a personal loan from Mr. Syelsky.39  In support of that              
          contention, petitioner relies on his self-serving testimony and             
          Mr. Syelsky’s testimony.  We are not required to, and we shall              
          not, rely on petitioner’s testimony.  Mr. Syelsky testified that            
          he lent $20,000 to petitioner.  Although Mr. Syelsky was unable             
          to remember whether he had made that loan to petitioner in 1991             


               38(...continued)                                                       
          alleged $3,000 loan from Mr. Averbach.  We infer from peti-                 
          tioner’s failure to call Mr. Averbach and to elicit any such                
          testimony from Mr. Vulis that their testimony would not have been           
          favorable to petitioner’s position with respect to that alleged             
          loan.  We infer from petitioner’s failure to proffer any credible           
          documentary evidence regarding the alleged $3,000 loan from Mr.             
          Averbach that any such evidence does not exist and that, if any             
          such evidence does exist, it would not have substantiated peti-             
          tioner’s position regarding the alleged $3,000 loan from Mr.                
          Averbach.                                                                   
               39On brief, respondent raises a question as to how Mr.                 
          Syelsky could have issued a $20,000 check to petitioner in                  
          December 1992, since during that month Mr. Syelsky was involved             
          in bankruptcy proceedings that he had commenced earlier during              
          1992 and had represented to the Bankruptcy Court on Sept. 15,               
          1992, that he had only $100 in assets.  However, the parties                
          stipulated that Mr. Syelsky gave petitioner his $20,000 check               
          that was used to make the Dec. 15, 1992 deposit at issue.  To the           
          extent that respondent is arguing that we should disregard that             
          stipulation, we decline to do so because we do not find it to be            
          clearly contrary to the facts that we have found are established            
          by the record.  See Cal-Maine Foods, Inc. v. Commissioner, 93               
          T.C. at 195.                                                                




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