Simco Automotive Pump Co., Inc. - Page 21




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          Simco.  Any assessment of Neal’s actions, therefore, begins with            
          his learning of John’s diversions in August 1992.  Neal’s                   
          participation in the decision to treat the diverted funds as                
          compensation and to file amended corporate returns on that basis            
          was not fraudulent, certainly not without a showing that Neal was           
          aware that claiming compensation deductions in these                        
          circumstances was erroneous.  Respondent has not produced such              
          evidence; rather, the evidence shows that Neal was acting on the            
          advice of Simco’s accountant.  Cf. King’s Court Mobile Home Park,           
          Inc. v. Commissioner, 98 T.C. at 517 (“We have a strong suspicion           
          that * * * [the taxpayer] took the deduction knowing that there             
          was a substantial question as to the validity of that action.               
          But suspicion of fraud is not enough.”).  While we do not doubt             
          that Neal’s actions in filing the amended corporate returns were            
          also influenced by the knowledge that the audit of Dix Scrap was            
          likely to produce IRS scrutiny of Simco, this motivation does not           
          change our conclusion.  The amended returns, although claiming              
          erroneous deductions, substantially disclosed the diverted                  
          income.9                                                                    

               9 In King’s Court Mobile Home Park, Inc. v. Commissioner, 98           
          T.C. 511 (1992), the taxpayer filed an original return that                 
          failed to report certain income and then filed an amended return            
          that reported the income but claimed offsetting compensation                
          deductions, similar to the instant case.  However, in King’s                
          Court Mobile Home Park, Inc., the amended return was filed within           
          the time required to file a return, so the amended return took              
                                                             (continued...)           





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