- 29 -29 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 mayPage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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