- 24 - 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 omittedPage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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