Estate of Harvey Feinsmith, Deceased, Betty Feinsmith, Executrix - Page 24




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               We are similarly unconvinced that Mr. Feinsmith knew that              
          either of his returns was fraudulent when he filed it.  In order            
          to support a determination of fraud, respondent must prove                  
          clearly and convincingly that Mr. Feinsmith had at the time he              
          filed his personal income tax returns the requisite intent to               
          evade taxes known or believed to be owing.  As we read the                  
          cooperation agreement and the affidavits, those documents were              
          carefully worded so as to speak as of the time that the documents           
          were prepared and not as of the time that the returns were filed.           
          Those documents merely establish that Mr. Feinsmith knew about              
          the unreported income when the documents were prepared.  They do            
          not establish that he knew about that income when the returns               
          were filed.                                                                 
               Moreover, as of March 29, 1985, the date of the cooperation            
          agreement, Mr. Feinsmith’s 1984 return had not yet been filed.              
          The cooperation agreement provided explicitly that it would be              
          void (meaning that Mr. Feinsmith would be subject to prosecution,           
          including through the use of any statement or document that he              
          made or gave to the U.S. Attorney’s Office during its                       
          investigation) were Mr. Feinsmith not to comply fully with the              
          expressed understandings of the parties thereto.  One of those              
          understandings was that Mr. “Feinsmith must at all times give               
          complete, truthful and accurate information and testimony and               
          must not commit any further crimes whatsoever.”  We find it                 
          unlikely that Mr. Feinsmith would have intentionally omitted                




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