Chong-Kak and Sang-Ok Lee - Page 24

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               cases not to bootstrap a finding of fraud upon a                       
               taxpayer's failure to prove respondent's deficiency                    
               determination erroneous.  * * * [Citations omitted.]                   
               With this well-settled law in mind, we are not clearly                 
          convinced that the Lees actually or constructively received the             
          distributions from Hamalee determined by respondent.  Whereas               
          petitioners presented little evidence to show that Mr. Lee failed           
          to receive these distributions, respondent presented practically            
          no evidence at all to show that he did receive them.  We hold for           
          petitioners on this issue; respondent has failed to meet her                
          burden of proof.9  See also Drieborg v. Commissioner, 225 F.2d              
          216, 219-220 (6th Cir. 1955), affg. in part and revg. in part a             
          Memorandum Opinion of this Court (where fraud is determined for             
          each of several years, respondent's burden applies separately to            
          each of the years); Estate of Stein v. Commissioner, 25 T.C. 940,           
          959-963 (1956), affd. sub nom. Levine v. Commissioner, 250 F.2d             
          798 (2d Cir. 1958).  Thus, the Lees are not liable for the 1985             
          and 1986 additions to tax for fraud determined by respondent.               

          9 Our holding on this issue is not inconsistent with our                    
          prior holding that included the distributions in the Lees' 1985             
          and 1986 taxable income.  Our first holding is based on the fact            
          that petitioners failed to prove by a preponderance of the                  
          evidence that the Lees did not receive the subject distributions.           
          Our second holding is based on the fact that respondent has not             
          proven by clear and convincing evidence that they did.                      

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