- 34 -
Any one statement might be overlooked or rationalized, but the
cumulative effect of such testimony is indicative of fraud on the
part of Mr. McGirl.
e. Intent to Mislead
Misleading statements to an investigating agent may be
evidence of fraud. Gajewski v. Commissioner, supra at 200. Mr.
McGirl admits that he fabricated IOU's and gave them to his
representative while he was being audited by the MDR. In hopes
of avoiding a State audit, Mr. McGirl told Ms. Berg that the
Yogurt Station had no checking account and that he paid all bills
by cash.
f. Lack of Credibility of Mr. McGirl's Testimony
A taxpayer's lack of credibility, inconsistent testimony, or
evasiveness are factors in considering the fraud issue.
Toussaint v. Commissioner, 743 F.2d at 312. Although Mr. McGirl
had operated two restaurants and was responsible for their
finances, he testified "I am not even sure I know--if I know what
an invoice is." Petitioners amassed more than $112,000 in
savings. Monthly brokerage statements were entered into evidence
that clearly show the magnitude of their savings. Mr. McGirl
wrote checks almost weekly on the business checking account to
the savings account during the years in question; the checks were
for $1,000 to $5,000 each. Petitioners' own check spreads detail
and total the amounts put into the savings account. Yet, the
following colloquy took place between Mr. McGirl and respondent's
attorney at trial:
Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 NextLast modified: May 25, 2011