David W. Hill - Page 20

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          original Federal income tax returns.  Accordingly, we find that             
          Mr. Pressley's preparation of petitioner's returns is not a                 
          sufficient defense to fraud.                                                
               Petitioner contends that it was his intention to file                  
          amended returns as soon as he received Forms 1099 from Mr. Hall.            
          We find that it is more reasonable to infer from petitioner's               
          entire course of conduct that his true intention was to conceal             
          the payments he received from Mr. Hall and to take his chances              
          that his fraud would not be discovered.  Petitioner was aware of            
          the exact amount of the payments he received no later than                  
          November 21, 1992, when he signed the affidavit.  However, it was           
          not until after respondent began an examination of petitioner's             
          returns for the years in issue in February 1993 that he amended             
          his returns and paid his taxes.  The fraud was committed, and the           
          offense completed, when the original return was prepared and                
          filed.  See United States v. Habig, 390 U.S. 222 (1968); Plunkett           
          v. Commissioner, 465 F.2d 299, 302-303 (7th Cir. 1972), affg.               
          T.C. Memo. 1970-274.  "Any other result would make sport of the             
          so-called fraud penalty.  A taxpayer who had filed a fraudulent             
          return would merely take his chances that the fraud would not be            
          investigated or discovered, and then, if an investigation were              
          made, would simply pay the tax which he owed anyhow and thereby             
          nullify the fraud penalty."  George M. Still, Inc. v.                       
          Commissioner, 19 T.C. 1072, 1077 (1953), affd. 218 F.2d 639 (2d             
          Cir. 1955).                                                                 

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