Case: 14-11533       Date Filed: 04/09/2015      Page: 1 of 3


                                                                    [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-11533
                              ________________________

                                    Agency No. 367-12



VIDAL SURIEL,

                                                         Petitioner - Appellant,

versus

COMMISSIONER OF IRS,

                                                         Respondent - Appellee.

                              ________________________

                        Petition for Review of a Decision of the
                                     U.S. Tax Court
                              ________________________

                                       (April 9, 2015)

Before HULL and DUBINA, Circuit Judges, and BOWEN, * District Judge.

PER CURIAM:


         *
        Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia sitting by designation
                Case: 14-11533     Date Filed: 04/09/2015   Page: 2 of 3


        Vidal Suriel petitions for review of the United States tax court’s decision

that he is liable for $40.62 million in tax deficiencies for taxable years 2004 and

2006.

        Suriel raises three issues in his petition: (1) whether the tax court erred by

imposing an adverse inference against him for failing to present a witness from

Protabaco to corroborate testimony about Vibo Corporation’s reasons for joining

the Tobacco Master Settlement Agreement (MSA); (2) whether the tax court erred

in determining that Vibo could not deduct its MSA payment obligations under

I.R.C. § 468B; and, relatedly, (3) whether the tax court erred by failing to analyze

Vibo’s MSA payments under I.R.C. § 461.

        We review the tax court’s application of the federal tax code de novo and its

factual findings for clear error. Campbell v. Comm’r, 

, 1258 (11th

Cir. 2011). The credibility of a witness is a question for the factfinder and thus is

reviewed for clear error. See Blohm v. Comm’r, 

, 1552 (11th Cir.

1993).

        We agree with Suriel that the tax court should not have found that Suriel was

subject to an adverse inference for failing to present a witness from Protabaco to

corroborate the testimony that Vibo joined the MSA because of pressure from the

Colombian tobacco manufacturer. Although we conclude that this was error, based


                                            2
                Case: 14-11533       Date Filed: 04/09/2015      Page: 3 of 3


on our precedents regarding nonjury trials, our case law makes it clear that the

improper admission or exclusion of evidence is harmless “unless there is an

insufficiency of competent evidence, or the trial court was induced by incompetent

evidence to make an essential finding it would not otherwise have made.” Cain v.

Comm’r, 

, 1244 (5th Cir. 1972); see also Airlift, Inc. v. United

States, 

(5th Cir. 1972).1 Based on our review of the record, it

becomes clear to us that there was sufficient competent evidence to support the tax

court’s conclusion that Vibo voluntarily entered into the MSA for financial reasons

rather than at the behest of Protabaco. Accordingly, we conclude that the tax

court’s error was harmless.

       Except for the adverse inference error, we deny Suriel’s petition for review

based on the well-reasoned opinion of the tax court. Suriel v. Comm’r, 

(2013).

       PETITION DENIED.




       1
          In Bonner v. City of Prichard, 

, 1207 (11th Cir. 1981) (en banc), the
Eleventh Circuit Court of Appeals adopted as binding precedent the decisions of the former Fifth
Circuit issued before October 1, 1981.

                                               3