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to a stipulation to qualify, change, or contradict a stipulation
in whole or in part, except that it may do so where justice
requires. Id. Petitioners' stipulation as to their liability is
unqualified and unambiguous. Petitioner is an attorney, and he
knows how to write qualifying language if that is his intention.
The amounts agreed to were the result of compromises by both
sides, and it would be a grave injustice to respondent if we were
now to permit petitioners to read a statute of limitations
exception into this stipulation.
Second, we found that petitioner was not guilty of fraud,
but was irresponsible in his recordkeeping and breach of ethics
in commingling funds in his escrow account. We also found that
he underreported his income in all four of the years in issue,
although the underreporting for two of the years was not caused
by petitioner but by an error made by his accountant. We found
that petitioner's judgment was clouded by his severe alcoholism
during the years in issue, and that he did not have a fraudulent
intent; however, such a finding turned on the credibility of
petitioner's testimony and that of other witnesses. In view of
the substantial underpayments to which petitioner has agreed and
the badges of fraud that were present (consistent underreporting,
poor recordkeeping, and commingling of funds), we believe
respondent was substantially justified in bringing the case to
trial. It was not unreasonable for respondent to put
petitioner's credibility before the finder of fact.
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