Tan Dang and Ke T. Chaw Dang - Page 8




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        testimony would have been unfavorable to petitioners.  We disagree.           
        If a witness is equally available to both parties and neither party           
        calls that witness at trial, then no adverse inference is                     
        warranted.  See United States v. Rollins, 862 F.2d 1282, 1297-1298            
        (7th Cir. 1988); Kean v. Commissioner, 469 F.2d 1183, 1187-1188               
        (9th Cir. 1972), affg. on this issue and revg. on another issue 51            
        T.C. 337, 343-344 (1968); Grossman v. Commissioner, T.C. Memo.                
        1996-452, affd. 182 F.3d 275 (4th Cir. 1999); Gaw v. Commissioner,            
        T.C. Memo. 1995-531.  We have no reason to believe that a witness             
        from Asian Services was not equally available to both parties.                
        Thus, we do not apply the adverse inference rule.                             
             We conclude that petitioners had gross receipts from their               
        grocery store business of $1,088,298 for 1995, $1,074,289 for 1996,           
        and $1,077,288 for 1997, and that they did not underreport their              
        income for those years.                                                       
        B.   Whether Petitioners Are Liable for the Accuracy-Related                  
             Penalty for Negligence                                                   
             In view of our conclusion above, we conclude that petitioners            
        are not liable for the accuracy-related penalty for negligence for            
        any of the years in issue.                                                    
             To reflect the foregoing,                                                
                                                     Decision will be                 
                                                entered for petitioners.              









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