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are liable for an addition to tax for failure to pay the amount
shown as tax on a return on or before the date prescribed for
payment of that tax, unless the failure was due to reasonable
cause and not willful neglect. See sec. 301.6651-1(c)(1),
Proced. & Admin. Regs.
Petitioners contend that (a) respondent failed to provide
impartial Appeals hearings as required by section 601.106(c),
Statement of Procedural Rules; and (b) respondent could have
called Sims, Gurnaby, and Estoll as witnesses but did not.
We disagree that those points show respondent lacked a basis
in law. First, there is nothing in the record to suggest that
respondent’s administrative review in this case was improper;
every indication is that it was completely proper. Thus, this
case is distinguishable from Nguyen v. Commissioner, T.C. Memo.
2001-41, and Leewaye v. Commissioner, T.C. Memo. 1988-129.
Second, the record does not show that petitioners could not have
subpoenaed Sims, Gurnaby, and Estoll as witnesses for trial. 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 (1968); Grossman v. Commissioner, T.C. Memo.
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