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return; and (3) that the failure was willful. Sec. 7203;
see also United States v. Ostendorff, 371 F.2d 729, 730 (4th Cir.
1967). In order to establish that petitioner was required by law
to file a return, it must be shown that he received at least the
amount of gross income specified by section 6012(a).
Establishing petitioner's tax liability is not an element of
section 7203, and consequently no specific income tax liability
need be determined. See Cipparone v. Commissioner, T.C. Memo.
1985-234; cf. Johnson v. Commissioner, T.C. Memo. 1993-227
(taxpayer precluded from disputing the amounts he received as
embezzlement income where he was convicted in state court of
"Theft in Office" and the specific amounts embezzled were, under
state law, essential elements of each count in the indictment).
Second, the fact that the District Court's order of
restitution is discretionary also supports our conclusion that a
finding of petitioner's tax liability was not essential to the
District Court's judgment. Pursuant to 18 U.S.C. section 3663
(1994), "The court * * * may order, in addition to or, in the
case of a misdemeanor, in lieu of any other penalty authorized by
law, that the defendant make restitution to any victim of such
offense". (Emphasis added.)
For the aforementioned reasons, we find that an adjudication
of petitioner's tax liability was not essential to the District
Court's judgment and that this precondition to the application of
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