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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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