Estate of Harvey Feinsmith, Deceased, Betty Feinsmith, Executrix - Page 25




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          income from his 1984 return had he known of the income.10  Such             
          an intentional omission would have voided the cooperation                   
          agreement and would have subjected Mr. Feinsmith to criminal                
          prosecution in addition to any taxes payable on the omitted                 
          income.11                                                                   
               We conclude that respondent has failed to carry his burden             
          of proving fraud for both of the subject years.  Respondent has             
          failed to convince us clearly that Mr. Feinsmith was liable for             
          fraud in either year.                                                       
                                                  Decision will be entered            
                                             under Rule 155.                          





               10 We also disagree with respondent’s assertion that Mr.               
          Feinsmith’s intent to file a false return may be found in the               
          fact that he did not tell his accountant about his income from              
          the scheme.  As discussed above, we are unable to find as a fact            
          that Mr. Feinsmith knew about the unreported income when he filed           
          his returns.  Thus, he could not have told his accountant about             
          it beforehand.  Nor do we believe that Mr. Feinsmith was as                 
          “astute” as respondent claims.                                              
               11 We note in passing that the cooperation agreement                   
          provided that Mr. Feinsmith would “file amended personal income             
          tax returns for the period February 1, 1980 to the present [i.e.,           
          Mar. 29, 1985]” in order to report his agreed-upon income                   
          attributable to the scheme.  We do not understand this provision            
          to mean that Mr. Feinsmith knew that he would be filing a                   
          fraudulent return for 1984 and would later have to amend it.  We            
          read this provision simply to require that Mr. Feinsmith report             
          on his personal income tax returns all of the agreed-upon income,           
          let it be by way of an amended return or by way of an original              
          return.  In fact, whereas the cooperation agreement literally               
          requires that Mr. Feinsmith amend each of his returns from 1980             
          through 1985, he actually amended only his 1983 and 1984 returns.           




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