Henry F. K. Kersting - Page 7




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          motions filed by petitioner.  See Kersting v. United States, 865            
          F. Supp. 669 (D. Haw. 1994).  On September 2, 1994, the District            
          Court entered findings of facts and conclusions of law.  Adopting           
          the Commissioner's gross income calculations, the District Court            
          found, among other things, that petitioner was liable for                   
          penalties under section 6700 for 1982 through 1988 in the                   
          aggregate amount of $1,373,700.2  In calculating the amounts of             
          the penalties, the District Court found that the 33 corporations            
          were alter egos of petitioner and that the gross income of the              
          corporations was therefore attributable to petitioner.                      
          Specifically, the District Court found that:                                
               The government has demonstrated that Kersting derived                  
               as gross income through his corporations $3,478,036.25                 
               from his abusive programs from September 4, 1982,                      
               through July 18, 1984, and $5,129,483.70 thereafter.                   
               Applying the appropriate percentages * * * Kersting                    
               therefore is liable in the amount of $1,373,700.41                     
               pursuant to section 6700.                                              
               Though he has the burden of proof in this area,                        
               Kersting presented no credible evidence of what he                     
               considered was the gross income derived or to be                       
               derived from his programs.  In fact, Kersting's own                    
               testimony strongly suggested that he generated much                    
               more income from his programs than was included by the                 
               IRS in its calculations and that the Section 6700                      
               penalty is substantially understated.                                  



               2 For violations occurring before July 19, 1984, sec. 6700             
          imposes a penalty of 10 percent of the gross income derived or to           
          be derived by the taxpayer from an abusive tax shelter.  For                
          violations occurring after July 19, 1984, sec. 6700 imposes a               
          penalty of 20 percent of the gross income so derived.                       




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