Henry A. Julicher - Page 34




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          August 19, 1993 fax (in which the Attiehs represent that a                  
          payment will be made in September).  While it is clear that                 
          petitioner and the Attiehs remained in close contact through the            
          time of trial, petitioner would have us believe that all contact            
          with the Attiehs after the August 19, 1993, fax was oral only.              
          On this record, we do not believe that the fax correspondence               
          between petitioner and the Attiehs ceased in August 1993.  See              
          Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).  We can conclude           
          only that petitioner was either unable or unwilling to produce              
          later faxes that might bear more directly on the prospects for              
          recovery in 1994.20  Petitioner bears the burden of proving that            
          the Attieh Bros. loan became worthless in 1994.  The last piece             
          of documentary evidence shows that the Attiehs were still                   
          attempting to make repayment arrangements into September of 1993.           
          Even if we believed no later faxes were sent, the testimony given           
          by petitioner and Thair is too vague to provide any basis to                
          conclude that the situation as documented in August 1993                    
          specifically changed in 1994.  On this record, we conclude that             
          petitioner has failed to show that the Attieh Bros. loan became             
          worthless in 1994.                                                          




               20 The numerous instances in the record where petitioner               
          gave conflicting statements in connection with the casualty loss            
          have damaged his credibility with respect to all issues in the              
          case.                                                                       





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