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knowledge of the particulars of the transaction with the Ackerman
group would have resided in one person, Mr. Jouannet. Indeed,
representatives of Generale Bank and CLIS executed the various
agreements with the Ackerman group. These representatives
included Bruno Hurstel of CDR, Richard Devin, chairman of CLIS,
and members of the executive board of Generale Bank.89
Petitioner called none of these individuals to testify as to the
banks’ intentions in the transaction with the Ackerman group. We
infer that such testimony would have been unfavorable to
petitioner. See Wichita Terminal Elevator Co. v. Commissioner, 6
T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).
Notwithstanding these evidentiary gaps, there is a great
deal of other evidence in the record which shows that the banks
did not intend to enter into any film distribution business with
Messrs. Lerner and Ackerman.
a. Banks’ Prior History With Film Business
The question arises why the banks in 1996 would have wanted
to pursue a film business with anyone, much less with Messrs.
Lerner and Ackerman. The Credit Lyonnais group’s prior
experiences in the film business had not been positive.
Beginning in 1991, the Credit Lyonnais group had immersed itself
in the fortunes of MGM; it proved to be a financial disaster.
89 Mr. Hurstel was the secretary and treasurer of SMHC, was
on the board of directors of Epic Productions, and was a
representative of CDR.
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