Edward A. Wagner - Page 10

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          Inc. v. SciMed Life Systems, Inc., No. C-94-20775RPA, 1996 WL               
          241692 (N.D. Cal., May 2, 1996); Fidelity Bank, Natl. Association           
          v. Avrutick, 740 F. Supp. 222, 232 (S.D.N.Y. 1990); Schneider               
          (USA), Inc. v. C. R. Bard, Inc., No. Civ. A. 89-819-MA, 1990 WL             
          292143 (D. Mass., Oct. 11, 1990); Symbol Technologies, Inc. v.              
          Opticon, Inc., No. 86 CB 8736 (KMW), 1989 WL 38134 (S.D.N.Y.,               
          Feb. 27, 1989).                                                             
               Respondent bases her motion on the allegedly preclusive                
          effect of petitioner's convictions under 18 U.S.C. section 371              
          (1994) and I.R.C. section 7206(1) and (2) upon the issue of fraud           
          under section 6653(b).  Respondent contends that the opinion of             
          the Court of Appeals for the Ninth Circuit in Considine v. United           
          States, 683 F.2d 1285 (9th Cir. 1982), in combination with                  
          petitioner’s convictions under section 7206(2) and 18 U.S.C.                
          section 371 (1994) and petitioner’s status as a sophisticated               
          taxpayer, compels the conclusion that petitioner's conviction               
          establishes as a matter of law that his underpayment for 1975 was           
          "due to fraud," for purposes of section 6653(b), and thus that              
          respondent's motion should be granted.  Petitioners contend that            
          the convictions on all these counts might have had nothing to do            
          with receipt of income from an artificially inflated purchase               
          price paid by Caldwell to Cinepix:  The conviction for conspiracy           
          could be based on any one of eleven transactions; the convictions           
          under section 7206(2) could be based on aiding and abetting                 

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