Michael and Patricia Vetrano - Page 26




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                  1993 at that profession.  Finally, he admittedly                    
                  transferred title to his home and vehicles from                     
                  joint ownership to single ownership by Patricia                     
                  Vetrano in an attempt to place these assets                         
                  beyond respondent’s reach should the Court                          
                  determine that she is an innocent spouse under                      
                  I.R.C. �6013(e) for the years at issue.                             
                  [Citations omitted.]                                                

             Respondent argues that Mrs. Vetrano’s conduct exhibits the               
             following badges of fraud:                                               

                  She was an active participant in her husband’s                      
                  attempts to conceal the correct amount of his                       
                  1993 income.  She handled all of the BMAP checks,                   
                  cashed them, and received the proceeds.  She                        
                  endorsed most of these checks, and on some                          
                  occasions signed her husband’s name on them.                        
                  She dealt in cash to avoid scrutiny of her and                      
                  her husband’s finances.  Her actions were                           
                  designed to cover up the source of his income                       
                  from his first wife, the divorce court, and not                     
                  coincidentally, the Internal Revenue Service.                       
                  Mrs. Vetrano signed a joint tax return containing                   
                  an amount of income for her husband that she knew                   
                  had to be false.  She also took title to their                      
                  home and vehicles in an attempt to place them                       
                  beyond respondent’s reach.  [Citations omitted.]                    

                  In their posttrial brief, petitioners’ only mention of              
             the fraud penalty is the following:                                      

                       The IRS has asserted the civil fraud penalty                   
                  against Mr. Vetrano and amazingly against                           
                  Mrs. Vetrano as well.  Pursuant to 26 U.S.C. �                      
                  7454 and Tax Court Rule 142(b), this shifts the                     
                  burden of proof to the IRS.  Such fraud must be                     
                  proven by clear and convincing evidence.  Smith                     
                  v. Commissioner, 91 T.C. 1049, 1053 (1988).  In                     
                  unreported income cases the burden is on the                        
                  IRS to offer a rational basis for the deficiency                    
                  and if no rational basis exists for the proposed                    





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