Eddie Cordes, Inc., et al. - Page 43




                                       - 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

Last modified: May 25, 2011