Residential Management Services Trust - Page 25




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          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 prove             






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