- 36 - accountants, Mr. Fenn and Mr. Stimmel, to prepare his tax returns. We also do not believe that Mr. Davis' alleged "failure to cooperate" is the kind of uncooperativeness envisioned as a badge of fraud. One example of uncooperativeness alleged by respondent relates to pretrial motion practice and discovery requests. In this case, we do not believe that asserting privilege, having to be compelled to comply with discovery requests, and hiring numerous counsel to represent oneself are badges of fraud. Furthermore, we do not find Mr. Davis's lack of memory about certain events to be uncooperative. The transactions in issue took place between 15 and 25 years ago, and many witnesses had difficulty remembering events from so long ago. In the instant case, a lack of memory about the distant past is understandable. K. Conclusion After reviewing all of the facts and circumstances, we conclude that respondent has failed to prove clearly and convincingly that for 1976, 1984, or 1985 Mr. Davis intended to evade taxes known to be owing by conduct intended to conceal, mislead, or otherwise prevent the collection of taxes. Accordingly, we do not sustain the additions to tax for fraud for these years.Page: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
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