Michael L. and Susan Barnard - Page 22




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          income, (2) maintenance of inadequate records, (3) implausible or           
          inconsistent explanations of behavior, (4) concealment of assets,           
          (5) failure to cooperate with tax authorities, (6) engaging in an           
          illegal activity, (7) attempting to conceal the illegal activity,           
          and (8) dealing in cash.  Bradford v. Commissioner, 796 F.2d 303,           
          307 (9th Cir. 1986), affg. T.C. Memo. 1984-601; Petzoldt v.                 
          Commissioner, 92 T.C. 661, 700 (1989).                                      
               Respondent’s determination rests primarily on the fact that            
          the Bank issued to him the STRs as to petitioners, that                     
          petitioners used cashier’s checks to pay for personal expenses,             
          and that petitioners structured their affairs to avoid the                  
          reporting requirements as to cash transactions over $10,000.  See           
          31 U.S.C. sec. 5313; 31 C.F.R. sec. 103.22 (2000).  Respondent              
          also finds a fraudulent intent on the part of petitioners in the            
          fact that they underreported their income for each subject year,            
          that Nanny’s kept inadequate records, and that Nanny’s did not              
          deposit all of its cash receipts into the business account.                 
               On the basis of our review of the record, we conclude that             
          respondent has not proven this prong of the two-part test for any           
          of the subject years.  First, we give little weight to the mere             
          fact that petitioners’ income was understated for each year.  As            
          we view the record, bearing in mind the fact that respondent must           
          prove fraud by clear and convincing evidence, we conclude that              
          petitioners’ understatements were more properly attributable to             






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