Zalman Melnik and Lea Melnik - Page 30

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          presumption that the evidence would be unfavorable if produced.             
          Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165            
          (1946), affd. 162 F.2d 513 (10th Cir. 1947).                                
                    2.  Backdating and “Effective As of” Dating of                    
                   Documents                                                          
               Petitioners have admitted that one of the critical documents           
          in the record was backdated.  Although petitioners explain the              
          backdating as a matter of convenience, the fact that any                    
          backdating occurred suggests a willingness to manipulate the                
          relevant chronology in a way that does not enhance the                      
          credibility of petitioners’ evidence.                                       
               At least one document was revised after the effective date,            
          but the fact of the revision is not disclosed on the face of the            
          document.  It also appears that several key documents were not              
          prepared and dated contemporaneously.  For example, the                     
          promissory notes dated as of October 27, 2000, that purported to            
          formalize the loans the Melniks obtained from Clend were probably           
          not executed on the dates indicated and conflict with records               
          maintained by Bermuda Trust.  Many of the critical documents                
          reflect “effective as of” dating and do not reveal when they were           
          executed.                                                                   
               The “effective as of” dating and backdating of relevant                
          documents impede our review of the substance of the transactions            
          involving the foreign trusts and Clend and lead us to conclude              
          that the chronology reflected by those documents is not credible.           





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