Leslie R. Barth - Page 18

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            taxpayer's entire course of conduct may establish the requisite                             
            fraudulent intent.  Stone v. Commissioner, 56 T.C. 213, 223-224                             
            (1971); Otsuki v. Commissioner, 53 T.C. 96, 105-106 (1969).                                 
                  The failure to file tax returns, without more, is not                                 
            conclusive proof of fraud; such omission may be consistent with a                           
            state of mind other than the intention and expectation of                                   
            defeating the payment of taxes.  Stoltzfus v. United States,                                
            supra; Cirillo v. Commissioner, 314 F.2d 478, 482 (3d Cir. 1963),                           
            affg. in part and revg. in part T.C. Memo. 1961-192; Kotmair v.                             
            Commissioner, 86 T.C. 1253 (1986).  Failure to file, however, may                           
            be considered in connection with other facts in determining                                 
            whether an underpayment of tax is due to fraud.                                             
                  Petitioner's return for 1976 was filed 3 years late.  He did                          
            not file a return for 1977.  His returns for 1978, 1979, and 1980                           
            were filed only after he was investigated by the IRS and in                                 
            relation to sentencing on his conviction under section 7203.                                
            Because petitioner failed to maintain complete and accurate                                 
            records, his representatives could not prepare accurate returns.                            
            Petitioner's training and experience and knowledge of the proper                            
            way to keep books and records and report taxable income must be                             
            considered.  Under these circumstances, we infer that the failure                           
            to file returns and the failure to maintain records were intended                           
            to conceal his income and avoid payment of taxes.  See Scallen v.                           
            Commissioner, 877 F.2d 1364, 1370-1371 (8th Cir. 1989), affg.                               
            T.C. Memo. 1987-412; O'Connor v. Commissioner, 412 F.2d 304, 310                            




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