- 43 - due to fraud, we must treat the entire underpayment as attributable to fraud. Sec. 6663(b). CFC has the burden of showing by a preponderance of the evidence that any of respondent’s determinations are erroneous or that any portion of the underpayment was not attributable to fraud.29 CFC has failed to meet that burden on all counts. We, therefore, must hold that the entire underpayment, $554,941, is attributable to fraud. Sec. 6663(b). B. Edmund J. Cordes Respondent determined that the portions of Mr. Cordes’s 1994 and 1995 underpayments attributable to fraud are those portions representing the unreported constructive dividend and interest income resulting from Mr. Cordes’s bargain purchase of CFC’s notes. Again, the burden of proof is on respondent. Respondent has clearly and convincingly shown that Mr. Cordes has unreported constructive dividends and interest income giving rise to 29CFC’s only argument that a portion of the underpayment is not so attributable to fraud was “the taxpayer not only relied on the advice of his C.P.A. but also on the advice of the Internal Revenue Service Agent Ken McGee.” (Record cites omitted.) While reliance on professionals can be a defense to fraud, CFC could prevail with this defense only if it showed it provided the professional with complete and accurate information. Korecky v. Commissioner, 781 F.2d 1566, 1569 (11th Cir. 1986) (quoting Merritt v. Commissioner, 301 F.2d 484, 487 (5th Cir. 1962), affg. T.C. Memo. 1959-172), affg. T.C. Memo. 1985-63. The facts with which we were presented indicate just the opposite. CFC did not turn to professionals for any advice, let alone provide them with complete and accurate information. The only occasion when CFC (through Mr. Cordes) obtained advice from a professional was when Mr. Cordes inquired about the deductibility of losses upon the sale of CFC’s notes. CFC has conceded those deductions were fraudulently taken.Page: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
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