Michael J. Fitzpatrick - Page 21

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            tax years.  Moore v. United States, 360 F.2d 353 (4th Cir. 1965);                              
            DiLeo v. Commissioner, 96 T.C. 858, 885-886 (1991), affd. 959                                  
            F.2d 16 (2d Cir. 1992).                                                                        
                  We note that petitioner states he will attempt to use this                               
            forum to prove his innocence regarding his violation of the tax                                
            code, having been unable to appeal his conviction on Counts I and                              
            II.  Given this statement, and the form of petitioner's arguments                              
            so far, we now wish to make clear that, based on our holdings as                               
            to the application of collateral estoppel, there remains for                                   
            decision only a few items which were not decided in the District                               
            Court proceeding, which are as follows:  (1) The amount of                                     
            unreported income received by petitioner in 1981 and 1982 (as to                               
            which petitioner bears the burden of proof, Meier v.                                           
            Commissioner, 91 T.C. 273, 288 (1988)); and (2) the amount of the                              
            understatement of tax in 1982 attributable to fraud, for purposes                              
            of section 6653(b)(2), as to which respondent bears the burden of                              
            proof by clear and convincing evidence, DiLeo v. Commissioner, 96                              
            T.C. at 873.  As for those items decided in the District Court                                 
            proceeding with respect to the tax evasion charges, petitioner                                 
            missed his chance for reargument by his failure to appeal,                                     
            notwithstanding his claims as to "the necessity to allege                                      
            ineffective assistance of counsel involving an attorney who                                    
            showed no malice", and the costliness of appeal.                                               







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