Richard K. and Christine M. McGirl - Page 31

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          is still replete with indica of fraud on his part.                          
                    b.   Consistent and Substantial Understatements of                
                         Income                                                       
               The mere failure to report income is not sufficient to                 
          establish fraud.  Merritt v. Commissioner, 301 F.2d 484, 487 (5th           
          Cir. 1962), affg. T.C. Memo. 1959-172; Parks v. Commissioner,               
          supra at 664.  However, consistent and substantial understatement           
          of income may be strong evidence of fraud.  Marcus v.                       
          Commissioner, 70 T.C. 562, 577 (1978), affd. without published              
          opinion 621 F.2d 439 (5th Cir. 1980).  Moreover, a pattern of               
          consistent underreporting of income, when accompanied by other              
          circumstances indicating an intent to conceal income, justifies             
          the inference of fraud.  Holland v. United States, 348 U.S. 121,            
          137 (1954).  Even if we were to subtract the alleged loans,                 
          petitioners have admitted to understating the Yogurt Station's              
          gross income in the amounts of $24,310, $60,874, and $80,499 for            
          1989, 1990, and 1991, respectively.  These understatements are              
          both consistent and substantial; they are evidence of fraud.                
                    c.  Failure to Maintain Adequate Books and Records                
               Failure to maintain adequate books and records of income is            
          indicative of fraud.  Truesdell v. Commissioner, 89 T.C. 1280,              
          1302 (1987); Gajewski v. Commissioner, 67 T.C. at 200.  Although            
          Mr. McGirl had owned and operated a restaurant for over a decade,           
          he claims that invoices, receipts, and cash register tapes were             







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