John J. Burke and Vivian Burke - Page 20

            1, 19 (1980).  Mr. Burke did not file the returns for the taxable years in                  
            issue until March 29, 1991.  Mr. Burke filed delinquent returns only after                  
            being contacted by a revenue agent.  Mr. Burke also failed to file sales tax                
            returns for Jury's with the New York State Department of Taxation and Finance.              
                  Misleading a taxpayer's return preparer also constitutes evidence of                  
            fraud.  Parsons v. Commissioner, 43 T.C. 378, 395 (1964).  Mr. Burke made                   
            numerous misrepresentations to Mr. Silver, his accountant.  For instance, he                
            informed Mr. Silver that his withdrawals of MPC premiums were loans.  However,              
            we have already determined that no loan agreement existed between Mr. Burke                 
            and U.S. Life and that his diversion and use of these premiums were made                    
            without the knowledge and consent of U.S. Life.  In addition, when delinquent               
            returns were prepared, Mr. Burke directed Mr. Silver to deduct embezzlement                 
            losses for funds that he alleged had been misappropriated by Ms. Romano and                 
            Ms. Coleman.  Nevertheless, the record contains no evidence establishing that               
            either individual embezzled any funds from the Burke Insurance Agencies and,                
            after reviewing the entire record, we are convinced that the embezzlement                   
            alleged by Mr. Burke did not take place.                                                    
                  The destruction of books or records to conceal finances is persuasive                 
            evidence of fraud.  Spies v. United States, 317 U.S. at 499; Reynolds v.                    
            Commissioner, T.C. Memo. 1977-181.  Mr. Burke instructed Ms. Romano to destroy              
            insurance agency checkbooks and report them as stolen after he learned that he              
            was under investigation by the New York State Department of Insurance.  Ms.                 
            Romano did not carry out Mr. Burke's instructions.                                          
                  The omission of income and the commission of other criminal acts are                  
            additional indicia of fraud.  Petzoldt v. Commissioner, 92 T.C. at 701-702.                 
            Pursuant to a plea agreement with the Suffolk County District Attorney, Mr.                 
            Burke pleaded guilty to Grand Larceny 4, a felony under New York law, for                   
            failing to file sales tax returns and to remit sales taxes owed from Jury's to              
            the New York State Department of Taxation and Finance.  We have also                        
            determined that Mr. Burke diverted premiums owing to U.S. Life.  As the Court               






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