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McCulley v. Commissioner, T.C. Memo. 1997-285; Kaissy v.
Commissioner, T.C. Memo. 1995-474.
While respondent has established that Mr. Maloney is
estopped from denying that he willfully attested to a return that
he believed understated his 1986 taxable income, respondent has
not established that Mr. Maloney intended to evade tax. Cf.
McCulley v. Commissioner, supra (concluding that the taxpayer,
who had been convicted under section 7206(1), did not intend to
evade tax because she did not know that embezzlement income was
taxable); Kaissy v. Commissioner, supra (concluding that the
taxpayer, who had been convicted under section 7206(1), did not
intend to evade tax because he relied on his accountant).
Mr. Maloney knew that on their 1986 return he and Mrs.
Maloney understated their 1986 income. Mr. Maloney believed,
however, that on their 1985 return they had overstated their 1985
income by approximately the same amount and that, cumulatively,
during the years that he worked for the county, he reported his
total gross receipts. In addition, the typical indicia of an
intent to evade tax are not present. Mr. Maloney maintained
excellent records, provided all pertinent information to his
accountant and subsequently to the IRS, cooperated with the IRS's
investigation, and did not employ any scheme, artifice, or device
to conceal income. Accordingly, the 3-year statute of limitation
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