Alton C. Bingham - Page 9

                                         -9-                                          
          inference is warranted.  Kean v. Commissioner, 469 F.2d 1183,               
          1187-1188 (9th Cir. 1972), affg. on this issue and revg. on                 
          another issue 51 T.C. 337, 343-344 (1968).  It appears that                 
          either petitioner or respondent could have subpoenaed Mr. Lopp.             
          We draw no inference from the fact that neither party did so.               
          B.   Whether Petitioner Is Liable for the Deficiency as                     
               Determined by Respondent                                               
               1.   Collateral Estoppel                                               
               Petitioner was convicted under section 7206(1) of filing a             
          false return for 1984 by failing to report in his income the four           
          tax refund checks totaling $195,489.  His conviction estops him             
          from contesting that he received but failed to report in 1984 a             
          substantial amount of income attributable to the tax refund                 
          checks and that his return was willfully false.  Considine v.               
          United States, 683 F.2d 1285, 1287 (9th Cir. 1982).  However,               
          petitioner is not estopped from contesting that he received but             
          failed to report the $676,720.68 (the land sale proceeds) because           
          he was acquitted of all charges relating to the Lopps' land sale.           
               Petitioner points out that he was acquitted of both charges            
          relating to the land sale (embezzlement and failure to report the           
          land sale proceeds as income).  However, acquittal in a criminal            
          case where the Government has the burden of proving beyond a                
          reasonable doubt that a crime was committed does not resolve the            
          issue in this proceeding, where petitioner bears the burden of              
          proving that he did not underreport income for 1984.  E.g.,                 





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