Thomas L. Hobart - Page 11

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                  The existence of fraud is a question of fact to be resolved                              
            upon consideration of the entire record.  Gajewski v.                                          
            Commissioner, 67 T.C. 181, 199 (1976), affd. without published                                 
            opinion 578 F.2d 1383 (8th Cir. 1978).  Fraud will never be                                    
            presumed.  Beaver v. Commissioner, 55 T.C. 85, 92 (1970).  Fraud                               
            may be proved, however, by circumstantial evidence because direct                              
            proof of the taxpayer's intent is rarely available.  The                                       
            taxpayer's entire course of conduct may establish the requisite                                
            fraudulent intent.  Spies v. United States, 317 U.S. 492, 499                                  
            (1943); Stone v. Commissioner, 56 T.C. 213, 223-224 (1971);                                    
            Otsuki v. Commissioner, 53 T.C. 96, 105-106 (1969).                                            
                  The following facts that indicate fraud in this case have                                
            been established by clear and convincing evidence:                                             
            (1) Petitioner's misappropriation of funds from Zebrowski (see,                                
            e.g., Solomon v. Commissioner, T.C. Memo. 1982-603, affd. 732                                  
            F.2d 1459 (6th Cir. 1984)); (2) petitioner's understatement of                                 
            his taxable income by failing to report the misappropriated funds                              
            on his 1988 return (see Davis v. Commissioner, supra);                                         
            (3) petitioner's frequent dealings in cash (Bradford v.                                        
            Commissioner, 796 F.2d 303, 308 (9th Cir. 1986), affg. T.C. Memo.                              
            1984-601; Petzoldt v. Commissioner, 92 T.C. 661, 702 (1989));                                  
            (4) petitioner's implausible denial of the receipt of the                                      
            misappropriated funds and failure to explain expenditures that                                 
            far exceeded his reported income (see, e.g., Bahoric v.                                        
            Commissioner, 363 F.2d 151, 153 (9th Cir. 1966), affg. T.C. Memo.                              




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