-30- Our conclusions regarding fraud are also sufficient under section 6501(c)(1) to overcome the bar of the statute of limitations for that year. See Stone v. Commissioner, 56 T.C. 213, 228 (1971). Therefore, it is not necessary for us to discuss whether respondent has proven a substantial omission of income for purposes of section 6501(e)(1). For 1990 and 1991, respondent bases her determination of fraud on petitioners' failure to report income allegedly embezzled from Kortava and on postponement of reporting income from the vehicle resale business. Respondent has not proven by clear and convincing evidence that petitioner embezzled money from Kortava or that petitioners failed to report money received from Kortava as income with knowledge that the funds were taxable. Although petitioner exercised control over the funds and was high-handed in his use of them, leading to a dispute with Kortava, it is not clear that petitioner intended permanently to deprive Kortava of his funds. Respondent has not disproved petitioners' explanation that they were investing money in real estate and in other businesses in accordance with an agreement with Kortava, as demonstrated by their return of $165,000 of Kortava's money on his demand. See, e.g., Baumgardner v. Commissioner, 251 F.2d 311, 322 (9th Cir. 1957), affg. T.C. Memo. 1956-112; Ishijima v. Commissioner, T.C. Memo. 1994-353. We are not convinced that reporting income in 1991 instead of 1990 was due to fraud.Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
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