Henry Hardy - Page 9

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          petitioner's 1990 gross income.  Because the reconstructed income           
          was sufficiently similar to the income that petitioner had                  
          reported on his 1990 Schedule C, the IRS decided not to pursue an           
          audit of petitioner's 1990 Federal tax return.  As a result of              
          the audit, respondent sent a statutory notice of deficiency to              
          petitioner for 1988 and 1989 on April 9, 1993.                              



                                       OPINION                                        
               Respondent argues that petitioner understated his income               
          from Stardust in 1988 and 1989.  Respondent contends that                   
          petitioner maintained inadequate books and records and that the             
          calendars are the most accurate reflection of petitioner's                  
          income.  Respondent also argues that petitioner underpaid his               
          taxes for both years due to fraud and, accordingly, that section            
          6501(c)(1) permits assessment at any time.                                  
               Petitioner asserts that his records accurately reflect                 
          income.  On brief, petitioner states that he placed the X marks             
          on the calendars not to count income but to "tell if the dancers            
          were stealing customers, determine how effective telephones were            
          being handled, and gauge the potential profits to be made if the            
          business were being handled correctly".  Petitioner further                 
          asserts that respondent has not satisfied her burden of proving             
          fraud either for penalty purposes or for statute of limitations             
          purposes.                                                                   




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