AJF Transportation Consultants, Inc., et al. - Page 29

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             that AJF had sufficient current earnings and profits to sustain a                                    
             dividend in each of the 1988 and 1989 taxable years.  Although                                       
             AJF shows a deficit of $2,169 in taxable income for the 1990                                         
             taxable year, AJF had sufficient accumulated earnings and profits                                    
             to sustain a dividend.  Therefore, the constructive distributions                                    
             from AJF to Ferrentino must be included in Ferrentino's income as                                    
             a dividend.                                                                                          
                    Accordingly, we hold that respondent has shown by clear and                                   
             convincing evidence that Ferrentino had underpayments in tax for                                     
             the years in issue due to unreported dividend income in the                                          
             amounts he diverted from AJF by cashing the Custom Decorating and                                    
             fuel reimbursement checks.                                                                           
                    B.  Underpayments Due to Fraud                                                                
                    Since we have found that respondent has shown by clear and                                    
             convincing evidence that petitioners had underpayments of tax for                                    
             the years in issue, the next issue is whether some part of                                           
             petitioners' underpayment each year was due to fraud with the                                        
             intent to evade tax.  Fraud is established by showing that the                                       
             taxpayer intended "to evade tax believed to be owing by conduct                                      
             intended to conceal, mislead, or otherwise prevent the collection                                    
             of such tax."  Recklitis v. Commissioner, 91 T.C. at 909.  Tax                                       
             evasion need not be a primary motive, but the respondent may                                         








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