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Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946),
affd. on other grounds 162 F.2d 513 (10th Cir. 1947).
In Wichita Terminal, we recognized that the Commissioner has
no obligation to introduce evidence to rebut an allegation by the
taxpayer where the taxpayer failed to introduce “one scintilla of
evidence” to support its allegation. In that case, we stated:
“The rule is well established that the failure of a party 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 unfavorable.” Id. However, as we stated in
Sisson v. Commissioner, T.C. Memo. 1994-545:
This rule originates in Lord Mansfield’s observation
that “all evidence is to be weighed according to the
proof which it was in the power of one side to have
produced, and in the power of the other to have
contradicted.” Mammoth Oil Co. v. United States, 275
U.S. 13, 51 (1927) (quoting Blatch v. Archer, 1 Cowper
63, 65 (1774)); Kirby v. Tallmadge, 160 U.S. 379, 383
(1895). What Lord Mansfield did not say, but what the
Supreme Court added, is that the rule is to be applied
cautiously, and only in cases where the evidence is
possessed by one party and not accessible to the other
party. Mammoth Oil Co. v. United States, supra at 51.
This qualification mitigates the rigor with which the
rule might otherwise restrict the ability of the
parties to present their cases as they choose; the
qualification makes clear that, in our judicial system,
the trial court’s role is to decide cases on the
evidence presented, not on imaginable “evidence” not
presented. Fuller, The Problems of Jurisprudence 706
(Temp. ed. 1949) (“the moral force of a judgment of
decision will be at a maximum when * * * The judge
decides the case solely on the basis of the evidence
and arguments presented to him”).
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