Harold Wapnick - Page 22




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          income tax.  Petitioner bears the burden of proving that he is              
          not liable for the addition to tax under section 6661.  Rule                
          142(a).  He offered no evidence or argument that he is not liable           
          for the addition to tax under section 6661(a).  We conclude that            
          petitioner is liable for the section 6661(a) addition to tax for            
          1985 and 1986.                                                              
          F.   Petitioner’s Procedural Contentions                                    
               1.   Whether Time To Assess Taxes Had Expired                          
               Petitioner contends that the time to assess the taxes at               
          issue expired before respondent issued the notice of deficiency.            
          We disagree.  The Commissioner may assess tax at any time if the            
          taxpayer files a fraudulent return or fails to file a return.               
          Sec. 6501(c)(1), (3).  Petitioner filed fraudulent returns for              
          1985 and 1986, Wapnick v. Commissioner, T.C. Memo. 1997-133, and            
          did not file a return for 1987.  Thus, respondent’s notice of               
          deficiency is timely.                                                       
               2.   Summary Judgment                                                  
               Petitioner contends that he is entitled to summary judgment            
          based on his contention that the 13 corporations are not shams,             
          that he had more than $3 million in bad debts in 1988, and that             
          he was wrongly convicted in his criminal case.  We disagree.                
          Summary judgment is not appropriate here because material facts             
          are in dispute.  We have found that petitioner’s 13 corporations            








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