Estate of Leon Spear, Deceased, Jeanette Spear, Harvey Spear and Robert Spear, Administrators, and Jeanette Spear - Page 4

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          as having made a prima facie showing as to the deemed facts.                
          Estate of Spear v. Commissioner, 41 F.3d at 117.                            
               The Court of Appeals said:                                             
               there are many other places in the opinion that make it                
               appear that the tax court found sufficient evidence of                 
               net worth and of fraud without relying on the deemed                   
               facts.  Nonetheless, because we are unsure whether the                 
               court relied on these facts and shifted the burden of                  
               proof, and because the consequences to the taxpayers                   
               are so significant, we must assume that the court did                  
               rely on these facts.  We will thus treat the sanction                  
               as one that essentially shifted the burden of proof                    
               (and production) on net worth and on fraud.                            
          Id. at 108-109.                                                             
               The Court of Appeals limited its discussion of the record              
          mainly to the facts bearing on the sanctions issue.  Estate of              
          Spear v. Commissioner, 41 F.3d at 105.  The Court also said:                
               The [tax] court may, of course, elect to retry the                     
               case.  In that event, it might be well advised to rely                 
               upon Jeanette's videotaped deposition in lieu of her                   
               testimony, although perhaps her emotional state is now                 
               better.  On the other hand, the court may simply prefer                
               to decide the case on the basis of the existing record,                
               but absent the "deeming" and its consequences which we                 
               have declared invalid.                                                 
          Id. at 117.                                                                 
               The Court of Appeals also said with respect to petitioner's            
          videotaped deposition that "it is difficult to see how anything             
          more would be forthcoming at a trial."  Id. at 116.  We agree.              
          Neither side has requested further trial.  We conclude that                 
          further trial is unnecessary.                                               







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