- 6 - 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.Page: Previous 1 2 3 4 5 6 7 Next
Last modified: May 25, 2011