Phillip A. O'Bryon and Cyndie W. O'Bryon - Page 23




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               Furthermore, the notice of deficiency asserts a delinquency            
          penalty for the tax years 1992, 1993, and 1994.  The explanation            
          indicates that the 1992 return, due October 15, 1993, was not               
          filed until January 7, 1994; the 1993 return, due October 15,               
          1994, was not filed until October 19, 1995; and the 1994 return,            
          due October 15, 1995, was not filed until November 27, 1995.                
          Phillip was charged on March 30, 1995, with grand theft from the            
          operation of his Ponzi scheme.  On April 28, 1995, having entered           
          a guilty plea to the charges, the State court sentenced Phillip             
          to 2 years in prison and ordered him to pay $468,834 in                     
          restitution.  Absent more than Cyndie's mere assertion of                   
          eligibility for relief under section 6015, it seems highly                  
          unlikely that Cyndie did not know about Phillip's Ponzi scheme              
          when she signed the returns for the tax years 1993 and 1994 after           
          Phillip was sentenced by the State court.                                   
               Given the information available to respondent, including the           
          fact that Phillip deposited funds received from his criminal                
          activity into petitioners' joint checking accounts throughout the           
          years in issue, and the joint returns for 1993 and 1994 were                
          filed after Phillip was convicted on the State theft charges, we            
          find respondent's position reasonable and substantially                     
          justified.  It is inappropriate to award petitioners litigation             
          costs attributable to Cyndie's section 6015 claim for relief                
          under these circumstances.  See Krafsky v. Commissioner, T.C.               






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