Michael L. and Susan Barnard - Page 24




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          business and petitioners’ commingling of the funds, calculated              
          for Federal income tax purposes the amount of any loan that he              
          believed existed between petitioners and Nanny’s by virtue of               
          their use of its funds and vice versa.  We are unable to conclude           
          on the basis of the record at hand that petitioners knew when               
          they filed their tax returns that Mr. Mason’s calculation may               
          have reflected inaccurately their use of Nanny’s funds.  Nor do             
          we believe that the mere fact that petitioners commingled their             
          personal funds with the funds of Nanny’s, and knew that they did            
          so, means ipso facto that petitioners possessed the requisite               
          fraudulent intent when they filed their income tax returns.                 
               Our conclusion is unchanged by the fact that the Bank issued           
          the STRs as to petitioners.  As we view the transactions                    
          underlying the STRs, we are unable to conclude that those                   
          transactions, which occurred in only the last 2 years in issue,             
          lead to a finding that petitioners possessed the requisite                  
          fraudulent intent in any of the years.  Ten of the reported                 
          transactions involved payments on loans which presumably included           
          the Social Security number of one or both petitioners.  The                 
          remaining transactions concerned petitioners’ purchase of                   
          cashier’s checks, no two of which were on the same day and each             
          of which was somewhat spread out from another.  Although all of             
          the cashier’s checks were in amounts less than $10,000, none of             
          those checks, but for three of the $9,000 checks payable to Mr.             






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