Kyl Christians - Page 18

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          ignorance instruction” to a jury.  It was held that such an                 
          instruction “is appropriate if the defendant denies knowledge of            
          an operative fact and the evidence demonstrates or creates the              
          inference that the defendant deliberately avoided actual                    
          knowledge of that fact.”  Id. (citing United States v. Lee, 54              
          F.3d 1534, 1538 (10th Cir. 1995)).  As we have found, petitioner            
          did not collude with his father or deliberately avoid knowledge             
          to avoid culpability.  Accordingly, United States v. Bornfield,             
          supra, is not analogous to our circumstances.                               
               In conjunction with that approach, respondent also argues              
          that petitioner’s father’s actions should be imputed to                     
          petitioner.  Respondent’s position derives from joint and several           
          liability cases.  In those cases, both spouses by the filing of a           
          joint return were liable for any fraud penalty, irrespective of             
          which spouse intended to evade the tax.  We note that the cases             
          respondent relies on are dated and have been superseded by                  
          statute.  See, e.g., sec. 6663(c).                                          
               More importantly, the cases relied upon by respondent                  
          involve situations where one spouse was found to have                       
          intentionally evaded tax.  There has been no showing by clear and           
          convincing evidence that petitioner’s father intended to file a             
          fraudulent return on his son’s behalf.  Accordingly, there is no            
          need to consider whether the concept of joint and several                   
          liability would apply in this case.                                         






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