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.2dPage: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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