Linda A. Fields - Page 16




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          BIC’s 1992 income.7  Without the BIC income, FFI apparently had             
          no taxable income in 1992; indeed, the Fieldses apparently used             
          the refund of FFI’s $300,000 estimated tax payment to pay almost            
          all of their 1992 underpayment of approximately $350,000 that               
          resulted from Mr. Carcasi’s botched plan.  In effect, the                   
          Fieldses simply made a payment to the wrong tax account in 1992.            
          On those facts, respondent had no reasonable basis for asserting            
          the fraud penalty against petitioner with respect to the                    
          understatement of income on the initial 1992 return.                        
               D.  Disallowed Business Expense Deductions                             
               Respondent averred that petitioner fraudulently overstated             
          business expenses (1) on the amended 1991 return by $46,790, (2)            
          on the amended 1992 return by $138,795, and (3) on the 1993                 
          return by $64,081.  Respondent’s position in that regard is                 
          particularly puzzling, since the Fieldses filed those returns               
          after respondent had commenced his examination of the years in              
          question.8  In effect, respondent took the position that                    
          petitioner committed fraud with respect to those returns even               
          though she knew that respondent would immediately examine them.             


               7  The size of that estimated tax payment indicates that the           
          amount of BIC’s income that was sheltered by FFI’s losses in                
          accordance with Mr. Carcasi’s plan was, in fact, insubstantial.             
               8  Petitioner alleges that the revenue agent who examined              
          the returns never relied on the disallowed deductions to sustain            
          a finding of fraud, an allegation that is supported by the                  
          revenue agent’s report (Form 886-A) with respect to this case.              





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