[DO NOT PUBLISH]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: 1 of 3 
2

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, 658 F.3d 1255, 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, 994 F.2d 1542, 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 

Case: 14-11533 Date Filed: 04/09/2015 Page: 2 of 3 
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, 460 F.2d 1243, 1244 (5th Cir. 1972); see also Airlift, Inc. v. United 

States, 460 F.2d 1065 (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, 141 T. C. 

507 (2013). 

PETITION DENIED.

 1 In Bonner v. City of Prichard, 661 F.2d 1206, 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. 

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