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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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