John J. Burke and Vivian Burke - Page 21

            of Appeals for the Sixth Circuit remarked long ago in Rogers v. Commissioner,               
            111 F.2d 987, 989 (6th Cir. 1940), affg. 38 B.T.A. 16 (1938):  "It is a fair                
            inference that a man who will embezzle funds in his charge will not hesitate                
            to understate his income with intent to defraud the Government."                            
                  A system of fraudulent bookkeeping entries by the owners of a business                
            combined with substantial understatements of income is evidence of fraud.                   
            Chesbro v. Commissioner, 21 T.C. 123, 130 (1953), affd. 225 F.2d 674 (2d Cir.               
            1955).  Mr. Burke instructed Ms. Romano to transfer funds from the MPC premium              
            account to the Burke Insurance Agencies' expense accounts and to draw checks                
            payable to herself, John J. Burke, various other employees, or "cash".  The                 
            checks would be cashed, and the funds delivered to Mr. Burke.  Pursuant to Mr.              
            Burke's instructions, Ms. Romano recorded these withdrawals from the expense                
            accounts as premium refunds and expenses.                                                   
                  A taxpayer's excessive dealings in large amounts of cash is further                   
            indication of fraud.  Estate of Mazzoni v. Commissioner, 451 F.2d 197, 202 (3d              
            Cir. 1971), affg. T.C. Memo. 1970-37.  Mr. Burke diverted insurance premiums                
            by having his employees cash checks and deliver the proceeds to him.  In order              
            to conceal his receipt of cash, Mr. Burke instructed Ms. Romano to write                    
            checks for amounts less than $10,000 in order to avoid generating a currency                
            transaction report.                                                                         
                  We conclude that the record contains clear and convincing evidence of                 
            Mr. Burke's fraudulent intent to evade income taxes for the taxable years in                
            issue.  Accordingly, we find that respondent has discharged her burden, and we              
            sustain her determination that Mr. Burke is liable for an addition to tax for               
            fraud.                                                                                      
                  Respondent computed the addition to tax for fraud on only a portion of                
            the underpayment for each year.15  However, with respect to the addition for                
            1986, respondent's answer asserts an increased addition to tax for fraud by                 


            15For purposes of applying this addition to tax, the "underpayment" is                      
            not reduced by any amount of tax reported on a delinquently filed return.                   
            Sec. 6653(c).                                                                               




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