Steven H. Toushin - Page 15

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          his personal return, his failure to do so was an honest mistake.            
          Respondent views differently the same evidence.                             
               Respondent argues that the cash amounts represent earnings             
          of E & A of Illinois skimmed by petitioner as "diverted                     
          receipts", or constructive dividends, that petitioner should have           
          reported as taxable income on his personal return.  Respondent              
          argues that the Savage return only reported the disputed amounts            
          after petitioner discovered he was under criminal investigation             
          by the IRS and is itself an act in continuation of petitioner's             
          fraud for the year 1982.                                                    
               Even where the nonmoving party on a motion for summary                 
          judgment would have the burden of proof at trial on an issue, she           
          is entitled to have the most favorable inferences drawn in her              
          behalf and to be given the benefit of favorable legal theories              
          invoked by the evidence. Anderson v. Liberty Lobby, Inc., 477               
          U.S. 242, 255 (1986); Charbonnages de France v. Smith, 597 F.2d             
          406, 414 (4th Cir. 1979).                                                   
               The present record indicates a 3-year pattern of unexplained           
          excess cash expenditures by petitioner as well as extensive uses            
          of currency.  In addition, we cannot overlook petitioner's                  
          stipulation to pleading guilty to the criminal violation of                 
          filing a false individual income tax return for the year 1980.              
          In a signed plea agreement with the Government, petitioner                  
          admitted receiving income from "skimming cash proceeds from                 






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