Simco Automotive Pump Co., Inc. - Page 22




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               As to respondent’s contention that Neal gave false testimony           
          at trial concerning an audit interview with respondent’s agents,            
          this claim rests on conflicting testimony.  One of the agent’s              
          notes of the interview recorded that John said he followed a                
          procedure for ensuring that the weight tickets that reflected the           
          scrap metal sales were forwarded from his work location in the              
          Prospect building to the main office in the Buchanan building.              
          At trial, both John and Neal denied that John had made the                  
          statements recorded in the notes, while both agents gave                    
          contradicting testimony.  The agent’s notes are not in evidence,            
          although John and Neal obtained the notes and reviewed them just            
          prior to trial.  On this record, respondent has failed to prove,            
          by clear and convincing evidence, that Neal gave false testimony            
          at trial.                                                                   
               Finally, while we agree with respondent that Neal’s                    
          testimony alluding to the possibility that he himself may have              
          been the one who first raised the issue of scrap metal sales is             
          highly improbable, we do not believe this is a material factor in           
          light of the actions taken by Neal to disclose the diverted                 
          income on Simco’s amended returns.                                          

               9(...continued)                                                        
          the place of the original return.  Thus, the question was whether           
          the deductions were claimed fraudulently, not whether the income            
          was omitted fraudulently.  In the instant case, the amended                 
          returns were not filed within the time required for filing                  
          returns, so they do not take the place of the original returns.             





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