-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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