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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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