Robert T. Schirle - Page 27

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          checks deposited into the Mitsui account in 1991 that represent             
          income to petitioner.                                                       
               As to the $3,000 cash deposit into the Mitsui account in               
          1989, respondent merely asserts it was fraudulent and discusses             
          petitioner's alleged check cashing scheme.  Respondent provided             
          little evidence to meet the burden of proving that any amount of            
          this underpayment was due to fraud; therefore, we conclude that             
          respondent has not clearly and convincingly proven fraud with               
          regard to the $3,000 cash deposit into the Mitsui account in                
          1989.                                                                       
               As to the portion of the underpayment attributable to the              
          amounts petitioner claimed he paid Mr. Yoon as compensation in              
          1988 and 1989, we find that these amounts were not omitted with             
          the intent to evade taxes.  We conclude that respondent,                    
          therefore, has not met his burden of proving fraud by clear and             
          convincing evidence with regard to any of the portion of the                
          underpayment attributable to amounts petitioner claimed he paid             
          to Mr. Yoon as compensation in 1988 and 1989.                               
          Statutory Period of Limitations--1988, 1989, and 1990                       
               Petitioner's returns for 1988, 1989, and 1990 were filed               
          more than 3 years before the subject notice of deficiency was               
          mailed on July 7, 1995.  Therefore, assessment of the                       
          deficiencies and additions determined in the notice is barred by            
          the expiration of the statutory period of limitations on                    





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