Robert D. Grossman, Jr. - Page 53

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          Orlando appeared, which showed a net credit and not a net amount            
          due.  Because Baybrook would not have had to prepare a check as             
          payment for the October 1984 invoice, it is not clear whether               
          petitioner examined the October invoice in detail.  If petitioner           
          had examined the October invoice and traced the charges and                 
          payments made back to the August 1984 invoice, then petitioner              
          would have realized that the airlines tickets to Orlando                    
          appearing on the October invoice were “paid for” with credit                
          issued on account of the refund of charges appearing on the                 
          August invoice.  It is not clear that petitioner went through               
          such deliberation.  It is not clear whether petitioner actually             
          knew, much less intended, that Markette paid for the airlines               
          tickets to Orlando; thus, it is not clear that petitioner knew              
          and intended that that amount be omitted from petitioner’s and              
          Betsy’s 1984 joint tax return.  Respondent has failed to prove by           
          clear and convincing evidence that the omission of the $780                 
          constructive dividend in 1984 was due to petitioner’s fraud.                
               As shown supra table 17, this $780 item is the only one of             
          the items that respondent relies on as to which we have found               
          that respondent showed by clear and convincing evidence that                
          petitioner had an underpayment of tax for 1984.  Respondent’s               
          failure to show by clear and convincing evidence that this $780             
          omission was fraudulent leads to the conclusion that respondent             







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