Richard K. and Christine M. McGirl - Page 34

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          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:                                                          


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