Carl Dimichele and Eileen Dimichele - Page 34

             purpose of evading a tax believed to be owing, Webb v.                   
             Commissioner, 393 F.2d 366, 377 (5th Cir. 1968), affg. T.C.              
             Memo. 1966-81; McGee v. Commissioner, 61 T.C. 249, 256                   
             (1973), affd. 519 F.2d 1121 (5th Cir. 1975).  Respondent                 
             must prove that there was an underpayment, Parks v.                      
             Commissioner, 94 T.C. 654, 660 (1990), and that the                      
             taxpayer intended to evade taxes by conduct intended to                  
             conceal, mislead, or otherwise prevent tax collection.                   
             Stoltzfus v. United States, 398 F.2d 1002, 1004-1005 (3d                 
             Cir. 1968); Parks v. Commissioner, supra at 661; Rowlee v.               
             Commissioner, T.C. 1111, 1123 (1983).                                    
                  The first element, the existence of an understatement               
             of income is met.  Both parties acknowledge the understate-              
             ment of tax liability for the years in issue.                            
                  With respect to proof of fraudulent intent on the part              
             of petitioner, respondent has not satisfied its burden.                  
             The evidence set forth by respondent aims at exposing                    
             petitioner's knowledge of the circumstances of                           
             Mr. DiMichele's drug activities.  However, nothing                       
             submitted by respondent purports to prove petitioner's                   
             fraudulent intent to evade income taxes.  Although                       
             petitioner did sign the fraudulent income tax return, we                 
             find no act committed with the specific purpose of evading               
             income tax.  The record shows that petitioner's behavior                 
             was not focused upon committing fraud.  By requiring a                   
             showing of intent, the legal standard requires more than                 
             simply a general knowledge of the circumstances.  An                     
             examination of the evidence on the record leaves us with                 
             little awareness of petitioner's intentions.  Petitioner                 
             was not involved with the couple's record keeping                        
             firsthand.  Mr. DiMichele handled the couple's finances,                 
             with the exception of the monthly checks for expenses                    
             written by petitioner.  Respondent has pointed to no single              
             activity which would lead us to believe that petitioner                  
             deliberately misled the taxing authorities.                              
                  In a similar case involving the wife of a drug                      
             trafficker, the Court wrote:                                             
                  The mere fact that [the wife] was aware of her                      










Page:  Previous  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  Next

Last modified: May 25, 2011