J. Randall and Jane B. Groves - Page 15




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               We disagree that respondent has clearly and convincingly                
          proven that petitioner committed fraud.  We think a more likely              
          explanation is that petitioner’s understatements of income were              
          due to negligence.                                                           
               Petitioner had large understatements of income in 1988 and              
          1989 resulting from his sale of OPCS stock.  While that is a                 
          factor to be considered, a substantial understatement of income              
          standing alone does not prove fraud.  See Vannaman v.                        
          Commissioner, 54 T.C. 1011, 1018 (1970).                                     
               Petitioner did not keep records showing the number of his               
          shares of, or his basis in, OPCS stock in 1988 and 1989.                     
          However, we do not believe that he did so with the intent to                 
          underpay tax.  Instead, we think he was careless.  Carelessness              
          in the preparation and maintenance of books and records is not               
          fraud.  See Mitchell v. Commissioner, supra.                                 
               Respondent argues that petitioner intentionally misled Delk.            
          We disagree.  Petitioner admits that he hurriedly and negligently            
          prepared the 1988 tax organizer.  However, he testified that he              
          told Delk about the errors on the organizers and that Delk had               
          the correct information available to him.  Petitioner credibly               
          testified that he did not expect that the information on the 1988            
          and 1989 organizers would appear on petitioners’ returns as given            
          to Delk.  Although petitioner did not give correct information to            
          Delk about the bases in the OPCS stock, we are not convinced that            






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