Estate of Leon Spear, Deceased, Jeanette Spear, Harvey Spear and Robert Spear, Administrators, and Jeanette Spear - Page 12

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          States, 348 U.S. 121, 132 (1954).  The Commissioner’s use of the            
          net worth method may be valid even though the Commissioner did              
          not properly recognize the taxpayer’s opening net worth, so long            
          as the determination was not arbitrary.  Hoffman v. Commissioner,           
          298 F.2d 784, 786 (3d Cir. 1962); Baumgardner v. Commissioner,              
          251 F.2d 311 (9th Cir. 1957); Bodoglau v. Commissioner, 230 F.2d            
          336 (7th Cir. 1956).  Respondent was not arbitrary in applying              
          the net worth plus expenditures method here.                                
          D.   Whether Petitioners are Liable for Fraud Without                       
               Consideration of the Deemed Facts                                      
               In our prior opinion, we considered the deemed facts and the           
          entire record in holding that respondent clearly and convincingly           
          proved that petitioners are liable for the addition to tax for              
          fraud under section 6653(b) for 1975, 1976, and 1977.  Estate of            
          Spear v. Commissioner, T.C. Memo. 1993-213 (slip. op. at 55-56).            
          The mandate of the Court of Appeals instructs us not to treat               
          respondent as having made a prima facie showing with respect to             
          the deemed facts as a sanction for petitioner's failure to                  
          testify at trial.  This changes our analysis significantly.  We             
          no longer find as facts the allegations in subparagraphs k, l, o,           
          p, r, s, t, u, v, w, y, aa, ab, ac, ad, and ae of paragraph 7 of            
          respondent's amended answer because they are not adequately                 
          supported by the record.1  Assertions in the                                


          1 Paragraphs k, l, o, p, r, s, t, u, v, w, y, aa, ab, ac,                   
                                                             (continued...)           



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