Estate of Frank Johnson - Page 134




                                       - 62 -                                         
          United States v. Massei, 355 U.S. 595 (1958) (per curiam);                  
          Holland v. United States, 348 U.S. 121, 137-138 (1954); United              
          States v. Smith, 890 F.2d 711, 714 (5th Cir. 1989).  We have                
          concluded that respondent has proved likely sources for the                 
          unreported income and negated petitioners’ claimed nontaxable               
          source for those excess applications of funds.  Respondent’s                
          negation of a nontaxable source combined with petitioners’                  
          concessions relating to items reflected in respondent’s source              
          and application of funds analyses for Frank and Katherine, Larry,           
          Ronnie, and Sylvia establish that Frank and Katherine omitted               
          income for each year in issue.  Each omission of income resulted            
          in a deficiency in tax; Frank and Katherine’s omissions of income           
          over the years in issue, thus, clearly and convincingly establish           
          underpayments of tax for 1983 through 1990.26   See, e.g., Biaggi           
          v. Commissioner, T.C. Memo. 2000-48, affd. in unpublished opinion           
          __ F.3d __ (2d Cir. 2001).                                                  
               Accordingly, we hold that respondent has satisfied the first           
          element of establishing fraud by showing through clear and                  
          convincing evidence that Frank and Katherine had underpayments of           
          tax for each of the years in issue.  We next address whether                




               26  However, see infra sec. I.C. of this Opinion wherein we            
          discuss various adjustments we have made to the source and                  
          application of funds analyses for purposes of deciding the amount           
          of understated income for each year in issue.                               





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