Estate of Paul Campana - Page 14




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          not introduce evidence that petitioner's distributions in 1991              
          and 1992 exceeded her investment or that she knew that they                 
          exceeded her investment.  The record tends to the opposite                  
          inference.  Petitioner did not ask for her money back, but the              
          Court is left to wonder why.                                                
               While we are suspicious of petitioner's motives and                    
          inaction, suspicion is not evidence.  When weighed against the              
          evidence in opposition, the evidence adduced by respondent does             
          not "instantly tip the evidentiary scales" in the direction of              
          fraudulent intent on petitioner's part.  See Colorado v. New                
          Mexico, 467 U.S. 310, 316 (1984).  Respondent has not shown by              
          clear and convincing evidence that part of the underpayment of              
          tax for the years 1991 and 1992 is due to fraud.  Id.                       
          Fraud For 1994                                                              
               While it is clear that petitioner received some                        
          distributions, respondent is unable to determine how much was               
          disbursed by CNC to petitioner and her late husband in 1989 and             
          1990, some of which may have been in cash.  The parties agree,              
          however, that a total of $370,000 was distributed to petitioner             
          and her late husband over the 4 years including 1991, 1992, 1993,           
          and 1994.  Since a total of approximately $258,000 had been                 
          invested by June of 1993, at the end of 1994 petitioner clearly             
          had completely recovered her investment plus close to an                    
          additional $112,000.                                                        






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