John J. Burke and Vivian Burke - Page 16

                  Petitioners bear the burden of proving that the corporation actually                  
            incurred losses for the years in issue.  Our review of the record convinces us              
            that petitioners have failed to do so in this case.                                         
                  There are several reasons for our conclusion.  First, the record does                 
            not contain Ard Rhei's income tax returns for the years in issue.14  Second,                
            Mr. Burke failed to offer sufficient documentation to substantiate that Ard                 
            Rhei incurred the losses for which Mr. Burke claimed deductions.  Aside from                
            the unconvincing testimony of Mr. Burke and his accountant, the record only                 
            contains Ard Rhei's general ledger for 1985.  This ledger, without more, is                 
            insufficient to substantiate these losses.  Finally, a disclosure statement in              
            each of the returns for the years in issue demonstrates the uncertainty                     
            regarding these loss deductions.  These disclosures state:                                  

                  As per the direction of John J. Burke, amounts approximating the                      
                  results of Ard Rhei, Inc.'s (S-corporation, I.D.# 11-2734819)                         
                  operations have been included on the shareholders personal tax                        
                  return in order to more accurately reflect the income stated on                       
                  the Form 1040.  The corporation's tax return has not been filed to                    
                  date.  [Emphasis added.]                                                              

            Because Mr. Burke has failed to substantiate that Ard Rhei incurred any losses              
            for the years in issue, we sustain respondent's determination.                              

            Additions to Tax for Fraud                                                                  

                  We must next consider whether Mr. Burke is liable for additions to tax                
            for fraud under section 6653(b) for the taxable years 1985, 1986, and 1987.                 
            Respondent bears the burden of proof on this issue.  Sec. 7454(a).  For the                 
            taxable year 1985, if any portion of an underpayment of tax required to be                  
            shown on a return is due to fraud, there shall be added to the tax an amount                
            equal to 50 percent of the underpayment as well as an amount equal to 50                    
            percent of the interest payable under section 6601 with respect to that                     
            portion of the underpayment attributable to fraud.  Sec. 6653(b)(1) and (2).                
            For the taxable years 1986 and 1987, the addition to tax is equal to 75                     

            14Kenneth S. Silver, Mr. Burke's accountant, testified that he prepared                     
            these returns only a few weeks before trial.                                                



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