Gabriel Gutierrez and Connie Gutierrez - Page 6

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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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