Edward C. Tietig - Page 11




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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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