John J. Burke and Vivian Burke - Page 18

                  Mr. Burke engaged in a scheme to divert funds for his own benefit.  We                
            reject his claims that the funds, which he should have paid to U.S. Life, were              
            either loans or embezzlements by his employees.  Respondent's determination of              
            Mr. Burke's gross receipts for the years in issue is actually less than the                 
            total amount of premiums that was owed to U.S. Life as of March 1987.                       
            Respondent has clearly demonstrated that Mr. Burke failed to report income and              
            erroneously claimed deductions for embezzlement losses.  Consequently,                      
            respondent has clearly proven the underpayment of income tax for the taxable                
            years in issue.                                                                             
                  Next, respondent must show that Mr. Burke intended to evade taxes known               
            to be owing by conduct that was designed to conceal, mislead, or otherwise                  
            prevent the collection of such taxes.  Stoltzfus v. United States, 398 F.2d                 
            1002, 1004 (3d Cir. 1968); Webb v. Commissioner, 394 F.2d 366, 377-378 (5th                 
            Cir. 1968), affg. T.C. Memo. 1966-81; Rowlee v. Commissioner, 80 T.C. 1111,                 
            1123 (1983).  The existence of fraud is a question of fact to be resolved upon              
            consideration of the entire record.  Gajewski v. Commissioner, 67 T.C. 181,                 
            199 (1976), affd. without published opinion 578 F.2d 1383 (8th Cir. 1978).                  
            Fraud is never imputed or presumed.  Instead, it must be affirmatively                      
            established by respondent with clear and convincing evidence.  Beaver v.                    
            Commissioner, 55 T.C. 85, 92 (1970).  However, since direct evidence of a                   
            taxpayer's intent is rarely available, fraud may be proven with circumstantial              
            evidence and reasonable inferences which are drawn from established facts.                  
            Spies v. United States, 317 U.S. 492, 500 (1943); Rowlee v. Commissioner,                   
            supra.                                                                                      
                  Factors which are indicative of fraudulent intent on the part of a                    
            taxpayer include:  (1) Understatements of income; (2) inadequate records; (3)               
            failure to file tax returns; (4) implausible or inconsistent explanations of                
            behavior; (5) concealment of assets; (6) failure to cooperate with tax                      
            authorities; (7) engaging in illegal activities; (8) attempting to conceal                  
            these activities; and (9) dealing in cash.  Bradford v. Commissioner, 796 F.2d              






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