John J. Burke and Vivian Burke - Page 2

                                Additions to Tax                                                        
            Year Deficiency Sec. 6651(a)(1) Sec. 6653(b)(1)(A) Sec. 6653(b)(1)(B) Sec. 6661             
            1986  $256,295      $34,692          $88,473        50 percent of the  $28,401              
            interest due on                                                                             
            $113,605                                                                                    
            1987  $12,973         --             $12,791        50 percent of the  $3,124               
            interest due on                                                                             
            $12,497                                                                                     


                  The issues for decision are:  (1) Whether petitioners failed to report                
            income of $59,648, $242,669,1 and $50,746 on delinquent returns filed for the               
            years 1985, 1986, and 1987, respectively; (2) whether petitioners are entitled              
            to deduct embezzlement losses of $21,800 and $215,000 in 1985 and 1986,                     
            respectively; (3) whether petitioners are entitled to deductions of $20,253,                
            $141,418, and $37,348 in 1985, 1986, and 1987, respectively, for ordinary                   
            losses allegedly incurred by Ard Rhei, Inc., a small business corporation (S                
            corporation) under section 1366;2 (4) whether petitioner John J. Burke is                   
            liable for an addition to tax for fraud3 under section 6653(b);4 (5) whether                
            petitioner Vivian Burke tacitly consented to the filing of a joint Federal                  



            1In her answer, respondent determined an increased deficiency against                       
            petitioners for 1986 in order to reflect an additional $22,448 of funds                     
            allegedly embezzled by Mr. Burke and transferred to Ard Rhei, Inc.  As a                    
            result of this increased deficiency, respondent also increased the amounts of               
            the additions to tax against petitioners for fraud, delinquent filing, and                  
            substantial understatement of income tax.  This Court has jurisdiction to                   
            redetermine the correct amount of a taxpayer's deficiency even when the amount              
            so redetermined is greater than the amount listed by respondent in her notice               
            of deficiency.  Sec. 6214(a), I.R.C.  Respondent bears the burden of proof,                 
            however, with respect to "any new matter, increases in deficiency, and                      
            affirmative defenses, pleaded in the answer".  Rule 142(a), Tax Court Rules of              
            Practice and Procedure.                                                                     
            2Unless otherwise indicated, all section references are to the Internal                     
            Revenue Code in effect for the taxable years in issue, and all Rule references              
            are to the Tax Court Rules of Practice and Procedure.                                       
            3Respondent concedes the addition to tax for fraud against petitioner                       
            Vivian Burke for each of the years in issue.  See sec. 6653(b)(4).                          
            4As an alternative to the additions to tax for fraud, respondent asserts                    
            additions to tax for negligence against petitioners for each of the taxable                 
            years in issue.  Because of our resolution of the fraud issue, infra, it is                 
            unnecessary for us to consider respondent's alternative arguments.                          





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