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answer to that question would not have been favorable to
petitioner’s case. See Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946) (“the failure of a party
to introduce evidence within his possession and which, if true,
would be favorable to him, gives rise to the presumption that if
produced it would be unfavorable”), affd. 162 F.2d 513 (10th Cir.
1947). We are not dissuaded by Mr. Ledley’s testimony from our
conclusion, expressed above, that petitioner has not shown that
Messrs. Roisen and Helman’s failure to file timely the return was
due to their reliance on advice received from Mr. Ledley.
Finally, even considering Mr. Ledley’s advice, it was not
advice that, as a matter of law, Messrs. Roisen and Helman had no
obligation to file an estate tax return by December 10, 2000. It
was simply advice that there was some risk (unspecified) with
continuing their administration of the estate (including filing
the estate tax return). Indeed, Mr. Ledley returned to
preparation of the estate tax return in late January or early
February 2001 since, he testified, it was taking a long time for
the heirs under the German will to take over the New York
proceeding.2
2 Until Messrs. Roisen and Helman were relieved of their
duties as executors, there is no question but that it was their
obligation to file the Form 706. See sec. 20.6018-2, Estate Tax
Regs. Although they may not have had complete information about
the German assets, they could have satisfied that obligation by
filing a timely tax return based on the best information
(continued...)
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