Robert T. Schirle - Page 24

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          concluded that petitioner underpaid his taxes in the 1988, 1989,            
          and 1991 tax years due in part to unreported income from deposits           
          into the Mitsui account and unsubstantiated wage deductions for             
          amounts paid to Mr. Yoon.6  We must now determine whether                   
          petitioner had the requisite fraudulent intent with regard to               
          these underpayments in 1989 and 1991.                                       
          B.   Fraudulent Intent                                                      
               Next, respondent must prove that a portion of each                     
          underpayment for 1989 and 1991 was due to fraud.  Professional              
          Servs. v. Commissioner, 79 T.C. 888, 930 (1982).  The existence             
          of fraud is a question of fact to be resolved upon consideration            
          of the entire record.  DiLeo v. Commissioner, 96 T.C. 858, 874              
          (1991), affd. 959 F.2d 16 (2d Cir. 1992).  Fraud is never                   
          presumed but, rather, must be established by affirmative                    
          evidence.  Edelson v. Commissioner, 829 F.2d 828 (9th Cir. 1987),           
          affg. T.C. Memo. 1986-223.  Fraud may be proved by circumstantial           
          evidence because direct proof of the taxpayer's intent is rarely            
          available.  The taxpayer's entire course of conduct may establish           
          the requisite fraudulent intent.  Stone v. Commissioner, supra at           
          223-224.                                                                    

               6  Respondent does not assert fraud with respect to the                
          yearend ledger adjustment.  Thus, the only remaining                        
          underpayments as to which respondent is asserting fraud are the             
          $3,000 cash deposit into the Mitsui account in 1989, the checks             
          deposited in 1991 into the same account, and the amounts from the           
          cashed checks that petitioner claims went to Mr. Yoon as                    
          compensation.                                                               




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