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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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