Estate of Emanuel Trompeter, Deceased, Robin Carol Trompeter Gonzalez and Janet Ilene Trompeter Polacheck, Co-Executors - Page 38

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          attempt to detect and recover fraudulently omitted tax and by               
          interest charged for the period during which the fraudulently               
          omitted tax was not paid.1  This thwarts the very purpose of the            
          penalty.                                                                    
               Respondent's concern that the "government's reimbursement              
          [through the fraud penalty] could be consumed by the * * *                  
          [estate's] counsels' fees and fees being paid to the trustees,              
          who happen to be the beneficiaries of the estate", majority op.             
          p. 12, should concern us as well.  This case appears to have been           
          hotly contested.  The Court's initial opinion depicts a massive             
          fraud that respondent proved by clear and convincing evidence.              
          See Estate of Trompeter v. Commissioner, T.C. Memo. 1998-35.                
          Under the majority's holding, for every dollar that the estate              
          incurs in unsuccessfully fighting the deficiency and fraud                  
          penalty, it could potentially save more than $.96 in tax and                
          penalties!                                                                  
               A simple hypothetical may help explain this:  Assume a 55-             
          percent tax rate and a timely filed fraudulent return showing a             
          taxable estate of $1,000.2  The estate reports and pays tax of              
          $550 with the return.  Later, the value of the taxable estate               
          (before postreturn expenses) is determined by the Commissioner to           
          be $2,000.  The total amount of tax that should have been shown             

               1Petitioner is claiming postreturn administrative expenses             
          of $926,274 and interest expenses in the amount of $4,167,275.              
               2This is just an example.  The 55-percent rate is applied to           
          taxable estates exceeding $3 million.  Petitioner was clearly in            
          the 55-percent bracket.                                                     


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