Leo M. Ryan, et al. - Page 64

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          Petitioners have made no contentions or presented any evidence of           
          omitted deductions or credits.  On the basis of the evidence                
          presented in the instant cases, we conclude that respondent has             
          established by clear and convincing evidence an underpayment of             
          tax for 1982 and 1983 for petitioners Wilson, Cattalo, and                  
          Grove,30 and for 1983 for petitioner Giongo.  Cf. Franklin v.               
          Commissioner, supra.  For Giongo's 1982 taxable year, we conclude           
          that respondent did not present clear and convincing evidence of            
          an underpayment of tax.  Although, in our discussion above, we              
          attributed income from the Hitchens search casino chips to Giongo           
          based on the preponderance of the evidence, we do not find the              
          evidence as to his receipt of the income from the chips to rise             
          to the level of clear and convincing.  There being no other                 
          search during 1982 for which we have attributed income to Giongo,           
          we do not find clear and convincing evidence of an underpayment             
          of tax by Giongo for that year.                                             
               To establish fraud, respondent must show that the taxpayer             
          intended to evade a tax believed to be owing by conduct intended            
          to conceal, mislead, or otherwise prevent the collection of such            
          tax.  Cochrane v. Commissioner, supra at 28.  Fraud is never                
          presumed.  Id.  Because direct proof of a taxpayer's intent is              
          rarely available, fraud may be established by circumstantial                


          30   Additionally, petitioners Wilson, Cattalo, and Grove were              
          convicted of at least one count of either bribery or robbery                
          within each of the years in issue.  Such crimes are likely                  
          sources of unreported income.                                               


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