Gerald Dennis Strong - Page 25




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          to determine his tax liabilities.  From petitioner’s failure to             
          call Margulies to testify about this critical issue, we infer               
          that if Margulies had testified, then her testimony would have              
          been harmful to petitioner.  See O’Dwyer v. Commissioner, 266               
          F.2d 575, 584 (4th Cir. 1959), affg. 28 T.C. 698, 703 (1957);               
          Stoumen v. Commissioner, 208 F.2d 903, 907 (3d Cir. 1953), affg.            
          a Memorandum Opinion of this Court dated March 13, 1953; Wichita            
          Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946),            
          affd. 162 F.2d 513 (10th Cir. 1947).                                        
               On the basis of the foregoing, we conclude that there are no           
          special circumstances present in the instant case which warrant             
          an exception to the normal rules of res judicata preclusion.                
               We hold for respondent on this issue.8                                 
          II.  Petitioner’s Tax Filing Status                                         
               Respondent contends that petitioner filed a separate 1994              
          tax return, not a joint tax return, and relies on the following:            
          (1) Mary did not sign the tax return that petitioner filed, and             
          (2) Mary filed a separate tax return for 1994.  Respondent argues           
          that Mary neither authorized petitioner to sign the 1994 tax                
          return on her behalf, nor consented to the filing of a joint tax            
          return for 1994.  Petitioner contends that he is entitled to the            



               8Accordingly, we do not consider (1) respondent’s                      
          alternative contentions as to collateral estoppel, and (2) the              
          parties’ contentions as to the proper tax treatment of each                 
          category of petitioner’s income or receipts from NHP.                       





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