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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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