- 41 -
(preponderance of the evidence or clear and convincing evidence),
so that failure of proof in the criminal proceeding does not
necessarily lead to the conclusion that there will be a failure
of proof herein. See Kenney v. Commissioner, 111 F.2d 374 (5th
Cir. 1940); Traficant v. Commissioner, 89 T.C. 501, 510-511 n.9
(1987), affd. 884 F.2d 258 (6th Cir. 1989). Accordingly, the
affirmative defenses of res judicata and collateral estoppel are
unavailable to petitioner. In addition, there is no double
jeopardy in determining a civil addition to tax for fraud even
though a person has been indicted and tried for tax evasion. See
Ianniello v. Commissioner, 98 T.C. 165, 183-185 (1992).
We have considered all other arguments of the parties, and
to the extent not addressed herein we find them to be either
moot, meritless, or irrelevant.
To reflect concessions of the parties,
Decisions will be entered
under Rule 155.
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