- 25 - 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.Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Last modified: May 25, 2011