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by Eureka Field Nursery. If so, these payments may already have
been deducted as expenses on Eureka Field Nursery’s corporate
income tax returns.
Indeed, petitioner could not recall whether the 1993
payments reflected on the accounting sheet were made from a
personal bank account or an account from a corporation controlled
by petitioner. When petitioner was pressed on this point, he
indicated that Judy Fox could provide additional details
regarding the payments. Ms. Fox testified that she has been the
office manager for Farm & Grove, the Tietig 4 Land Trust, Kiddies
38 partnership, Edward C. Tietig, PA, Villasol Realty, and
Emerald Lake Utilities since 1990 and that she is the primary
custodian of the canceled checks and bank statements.
Nevertheless, petitioner did not ask Ms. Fox during her testimony
to establish the source of the checks. The inference we draw is
that the testimony would have been unfavorable to petitioner.
See Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158,
1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).
Moreover, petitioner testified that he had bank statements
and checks reflecting the payments in his business office at the
time of the trial.14 A party’s failure 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
14Petitioner testified that all payments were made by check.
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