- 25 - Careys’ failure to call Mr. Carpa is that his testimony would have been negative to Michael. See Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946) (“the failure of a party to introduce evidence within his possession and which, if true, would be favorable to him, gives rise to the presumption that if produced it would be unfavorable”), affd. 162 F.2d 513 (10th Cir. 1947); see also United States v. Tory, 52 F.3d 207, 211 (9th Cir. 1995) (similar). We, find, therefore, that Michael did control the trust’s operations. We also draw negative inferences from the Careys’ failure to identify the beneficiary (or beneficiaries) of Contract Administrators Trust, the claimed settlor of the trust, and the interest (or interests) behind Shasta Enterprises, the claimed beneficiary of the trust. Mr. Carpa would also seem a likely witness on those issues (as would representatives of Contract Adminstrators Trust and Shasta Enterprises). We infer from the Careys’ failure to call Mr. Carpa or another knowledgeable witness to testify on those issues that any such testimony would have been negative to Michael, i.e., that any witness would have testified that Michael, or Michael and Leone, transferred property to the trust and benefited from it, and we so find. If Michael had sufficient power and control over the trust’s receipt of income, then that income would be taxable to him. See Barmes v. Commissioner, supra. The Careys have failed to provePage: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
Last modified: May 25, 2011