Charles Y. and Jin Y. Choi - Page 19




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         markup of inventory, and thus he based the amount of the                     
         percentage markup entirely on interviews with petitioners.                   
              Because of those flaws and weaknesses, we place no reliance             
         on petitioners’ expert’s opinion.  Moreover, respondent’s bank               
         deposits analysis was properly and conservatively used.                      
         Therefore, petitioners have not shown that the percentage markup             
         method they used would more accurately reflects Gene’s gross                 
         receipts for the years in issue.  Accordingly, respondent’s                  
         determinations with regard to petitioners’ understatements of                
         income is upheld for 1991 and 1992.                                          
              Having decided that there was unreported income for 1991 and            
         1992, we now consider, for 1991, whether the understatement was              
         due to fraud within the meaning of section 6663.7  Respondent                
         determined that petitioner fraudulently and with intent to evade             
         income tax understated his income by omitting $223,673 and                   
         $161,789 of gross receipts for 1991 and 1992, respectively.                  
              Fraud is defined as an intentional wrongdoing designed to               
         evade tax believed to be owing.  Edelson v. Commissioner, 829                
         F.2d 828, 833 (9th Cir. 1987), affg. T.C. Memo. 1986-223.                    
         Respondent bears the burden of proving fraud by clear and                    
         convincing evidence.  Rule 142(b).                                           
              In order to prove fraud, the Commissioner must show the                 


              7 Respondent has conceded that petitioner Jin Y. Choi is not            
         liable for the fraud penalty for the 1991 tax year.                          





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