Michael W. Rehtorik, et al. - Page 18

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          underreported his income, one of the required elements of the               
          fraud addition to tax is not present.                                       
               In particular for 1984 and 1985, because respondent has                
          failed to prove fraud, the assessment of any tax deficiency and             
          additions to tax for those years is barred by the statute of                
          limitations.3  Sec. 6501(a), (c)(1).                                        

          Unreported Income for 1987                                                  
               For 1987, in spite of our conclusion that fraud has not been           
          established, respondent’s assessment of a tax deficiency would              
          not be barred by the 3-year period of limitation under section              
          6501(a), and we must decide whether petitioner should be charged            
          with $200,000 in unreported income relating to the managed                  
          account funds deposited into the bank accounts in his name.4  On            
          this issue for this year, petitioner has the burden of proof by a           
          preponderance of the evidence.  Rule 142(a).                                




          3     We note that respondent has not raised the 6-year period of           
          limitations under sec. 6501(e)(1)(A) for 1984 and 1985.  Because            
          respondent failed to raise the 6-year period of limitations in              
          pleading, amended pleading, or briefs, we shall not consider its            
          application.  See Estate of Rosenberg v. Commissioner, 86 T.C.              
          980, 984 n.1 (1986), affd. without published opinion per curiam             
          812 F.2d 1401 (4th Cir. 1987); Markwardt v. Commissioner, 64 T.C.           
          989, 997-998 (1975).                                                        
          4     Respondent determined that $244,449 in managed account                
          funds was deposited into bank accounts in petitioner’s name.  On            
          the evidence, we have found that the correct amount of managed              
          account funds deposited into bank accounts in petitioner’s name             
          was $200,000.                                                               




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