Theodore Langworthy, Jr. - Page 22

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          preparer is also an indication of fraud, Korecky v. Commissioner,           
          781 F.2d 1566, 1568 (11th Cir. 1986), affg. per curiam T.C. Memo.           
          1985-63, as is a conviction under section 7206(1), Wright v.                
          Commissioner, 84 T.C. 636 (1985).                                           
               Although the mere failure to report income is not sufficient           
          to establish fraud, Merritt v. Commissioner, 301 F.2d 484, 487              
          (5th Cir. 1962), affg. T.C. Memo. 1959-172, a pattern of                    
          consistent underreporting of income, especially when accompanied            
          by other circumstances showing an intent to conceal, justifies              
          the inference of fraud, see Holland v. United States, 348 U.S.              
          121, 139 (1954); Parks v. Commissioner, 94 T.C. 654, 664 (1990);            
          Otsuki v. Commissioner, 53 T.C. at 108.  In the instant case,               
          considering the record as a whole, we conclude that there are               
          sufficient badges of fraud to carry respondent's burden of proof.           
          The record reveals a pattern of consistent underreporting of                
          income by petitioner during all of the years in issue.  Moreover,           
          it is uncontroverted that petitioner failed to maintain adequate            
          records of his unreported income and expenses and that petitioner           
          conducted much of his business in cash.  Additionally, petitioner           
          failed to be forthcoming with his return preparer, Mr. Dillon,              
          disclosing neither his cash purchases nor his band expenses,                
          including band advertising.  Furthermore, while a conviction                
          under section 7206(1) does not establish fraud, it is one factor            
          to be considered.  Wright v. Commissioner, supra at 643-644.                
               We conclude that the record in the instant case contains               
          clear and convincing evidence that there was an underpayment for            



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