Leslie R. Barth - Page 21

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            Moreover, by the time the returns were filed, the fraudulent acts                           
            and omissions had already occurred.                                                         
                  In assessing petitioner's offer of proof, we have considered                          
            the testimony of Lipton and Timbie given in June 1994 in relation                           
            to Ms. Barth's innocent spouse claim.  Petitioner was present and                           
            objected to questions to Timbie concerning the records that he                              
            had examined.  After those objections were overruled, Timbie                                
            testified that he worked primarily from schedules prepared by                               
            Lipton and Onofrio and recommended the statements attached to the                           
            tax returns with respect to alleged loans.  Timbie did not see                              
            any loan documents.  Although Onofrio testified during criminal                             
            proceedings against petitioner, and petitioner was advised on                               
            April 4, 1995, to submit Onofrio's prior testimony as part of his                           
            offer of proof, petitioner failed to do so.                                                 
                  The record is replete with clear and convincing evidence                              
            that petitioner underpaid his tax in each of the years in issue,                            
            and those underpayments are due to fraud.                                                   
                  On consideration of the entire record,                                                

                                                       Respondent's motion to dismiss                   
                                                for lack of prosecution will be                         
                                                granted, and decision will be                           
                                                entered for respondent.                                 

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