Dennis C. Gandy - Page 46

                                       - 46 -                                         

          unspecified amount was embezzled by a former employee, but the              
          only support they cite is the assertion of counsel during trial             
          that the employee was indicted.  There is neither testimony nor             
          documentary evidence to substantiate the claim, and indictment              
          alone would not establish anything.  (Counsel was warned several            
          times during trial that such assertions would be given no                   
          weight.)  They argue that they are handicapped by the                       
          Government’s seizure of records, but the Court found that the               
          records were returned to them.  They imply that certain witnesses           
          have grudges and are biased, but they have failed to discredit              
          the testimony given by those witnesses.  They assert that they              
          did not take additional steps that would have indicated fraud,              
          such as asking that their mortgages be repaid in cash; these                
          arguments are unavailing.  Presumably the borrowers wanted                  
          evidence of interest payments for their own purposes.  In any               
          event, it is not a defense that petitioners did not do more to              
          further their fraud.                                                        
               Petitioners contend that they relied on their accountants to           
          prepare accurate returns, and reasonable reliance on a competent            
          agent may be a sufficient defense to fraud.  However, such                  
          reliance indicates an absence of fraudulent intent only when the            
          agent has been provided with complete information from which an             
          accurate return could have been prepared and there is no other              
          evidence indicating fraudulent intent.  Merritt v. Commissioner,            





Page:  Previous  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  Next

Last modified: May 25, 2011