James E. Stafford - Page 18

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          Recklitis v. Commissioner, 91 T.C. 874, 910 (1988); Rowlee v.               
          Commissioner, supra at 1125.                                                
              Although failure to file tax returns, even over an extended             
          period, may not per se establish fraud, it is persuasive                    
          circumstantial evidence of fraud.  Marsellus v. Commissioner, 544           
          F.2d 883, 885 (5th Cir. 1977), affg. T.C. Memo. 1975-368;                   
          Recklitis v. Commissioner, supra at 910-911.                                
              Petitioner is deemed to have admitted that he submitted                 
          Forms W-4 for tax years 1984 and 1988 to his employer claiming              
          that he was exempt from Federal withholding.13  Although the                
          Forms W-4 are not part of the record, the Court takes judicial              
          notice of the 1984 and 1988 Forms W-4 and relevant instructions             
          (as published by the U.S. Government Printing Office) for                   
          purposes of evaluating whether petitioner's filing was false.               
          See Recklitis v. Commissioner, supra at 911 and n.13.                       
              The 1984 and 1988 Forms W-4 required taxpayers to certify               
          under penalties of perjury that they were entitled to claim                 
          exempt status.  In order to qualify for exempt status, the Forms            
          W-4 provide that the following two requirements must be met:                
              a   Last year I did not owe any Federal income tax and had a            
              right to a full refund of ALL income tax withheld, AND                  

          13  Petitioner is also deemed to have admitted filing Forms                 
          W-4 claiming exemption for 1985, 1986, and 1987.  Because we are            
          granting respondent's motion for summary judgment for 1985, 1986,           
          and 1987 as to fraud based on petitioner's conviction under sec.            
          7201, we need not consider the filing of Forms W-4 for 1985,                
          1986, and 1987.                                                             

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