Edward A. Wagner - Page 13

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          against petitioner's co-defendant Murray Glantz, who was                    
          convicted under section 7201, and who has conceded receipt of               
          skim income and liability for the fraud addition.  See In re                
          Glantz, 468 N.Y.S.2d 634 (App. Div. 1983).  Summary judgment on             
          the tax fraud issue against the taxpayer was affirmed in                    
          Considine v. United States, 683 F.2d 1285, but there the                    
          taxpayer, offering no evidence or argument that the false                   
          statements on his tax return were made with any other intent than           
          to defraud the Government, had not controverted the Government's            
          assertion that he had filed his materially false return with                
          fraudulent intent, id. at 1288.  Here, petitioner has adduced               
          evidence and argument that he lacked fraudulent intent.  We                 
          conclude that this issue presents a factual dispute for trial.5             
               Respondent argues that petitioner’s intent to evade tax is             
          evidenced by the fact that he was a sophisticated lawyer and                
          investor, that he was convicted under section 7206(2) of                    
          assisting in the preparation of returns that were false and                 
          fraudulent, and that he was convicted under 18 U.S.C. sec. 371              
          (1994) of conspiring with others to defraud the United States.              

               5Compare Cimino v. Commissioner, T.C. Memo. 1994-80; Munson            
          v. Commissioner, T.C. Memo. 1991-377; Twist v. Commissioner, T.C.           
          Memo. 1986-497; Siravo v. Commissioner, T.C. Memo. 1986-482;                
          Keeton v. Commissioner, T.C. Memo. 1985-599, in all of which                
          summary judgment as to fraud was granted to respondent based                
          primarily on deemed admissions.  In Chermack v. Commissioner,               
          T.C. Memo. 1989-57, also, there were indicia of fraud not present           
          in the case at hand.                                                        

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