Malcolm I. Lewin and Trina Lewin - Page 29

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          case.7  See Bresler v. Commissioner, 65 T.C. 182, 188 (1975),               
          Pollack v. Commissioner, 47 T.C. 92, 108 (1966), affd. 392 F.2d             
          409 (5th Cir. 1968), and Wichita Terminal Elevator Co. v.                   
          Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th            
          Cir. 1947), to the effect that the failure of a party to offer              
          available testimony gives rise to the inference that it would               
          have been unfavorable to his contention.  Accordingly, we review            
          Becker’s testimony in the Jaroff case below and consider the                
          extent of his expertise and the likelihood that he gave special             
          assurances or guarantees to petitioner or petitioner’s partners.            

               7  The colloquy concerning petitioner’s counsel’s failure to           
          provide Becker’s testimony about his close relationship with                
          Cohen and Feinberg is as follows:                                           
               THE COURT:  I didn’t hear you mention Mr. Becker’s name                
               as a witness.                                                          
               MR. RIZEK:  We are not going to call Mr. Becker as an                  
               additional witness.  I think the 300 pages or so that                  
               we stipulated to in the supplemental stipulation are                   
               more than adequate to cover any points we wanted to                    
               establish with Mr. Becker.                                             
               THE COURT:  Well, that may be, but you’re going to talk                
               a lot about how these parties all had a relationship                   
               with Mr. Becker and all that sort of thing and you’re                  
               not calling Mr. Becker?                                                
               MR. RIZEK:  We are not calling Mr. Becker.  We don’t                   
               think it’s necessary, Your Honor.  I don’t think                       
               there’s going to be any doubt at the conclusion of the                 
               evidence that’s presented here that these Petitioners                  
               had fairly long standing relationships independent of                  
               this particular transaction with Mr. Becker.                           

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