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In 1994 and 1995 four checks of E.A. White Construction Co.
(White Co.), payable to petitioner's business Down to Earth
Plumbing, in the total amount of $103,274, were deposited (or
were sent for deposit) in a bank in Nassau, Bahamas. Petitioner
admits that he deposited one of the checks and that he was the
owner of the other three checks, which he had received in the
ordinary course of his plumbing business.
Petitioner has filed a motion in limine asking us to exclude
this evidence of petitioner's use of a Bahamian bank account in
1994 and 1995. Petitioner asserts that his use of a Bahamian
bank account in 1994-95 constitutes subsequent "other acts" of
petitioner, which are inadmissible "character" evidence under
rule 404(b) of the Federal Rules of Evidence. More generally,
petitioner asserts that this evidence of petitioner's actions in
1994-95 is unfairly prejudicial, confusing, and cannot be
relevant proof of petitioner's intent with respect to his failure
to file returns for the years 1989-92.
We agree with petitioner that in order to prove fraud for a
particular year, respondent must show that petitioner's failure
to file the return for that year was fraudulent. See sec.
6651(f). However, acts committed subsequent to the due date of a
return may be relevant evidence of a taxpayer's intent in failing
to file that return. See United States v. Farber, 630 F.2d 569,
571-572 (8th Cir. 1980) (tax protester materials filed within 3-�
years after 1974 return due date are admissible to show intent or
willfulness in taxpayer's prosecution for failure to file that
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