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ignorance instruction” to a jury. It was held that such an
instruction “is appropriate if the defendant denies knowledge of
an operative fact and the evidence demonstrates or creates the
inference that the defendant deliberately avoided actual
knowledge of that fact.” Id. (citing United States v. Lee, 54
F.3d 1534, 1538 (10th Cir. 1995)). As we have found, petitioner
did not collude with his father or deliberately avoid knowledge
to avoid culpability. Accordingly, United States v. Bornfield,
supra, is not analogous to our circumstances.
In conjunction with that approach, respondent also argues
that petitioner’s father’s actions should be imputed to
petitioner. Respondent’s position derives from joint and several
liability cases. In those cases, both spouses by the filing of a
joint return were liable for any fraud penalty, irrespective of
which spouse intended to evade the tax. We note that the cases
respondent relies on are dated and have been superseded by
statute. See, e.g., sec. 6663(c).
More importantly, the cases relied upon by respondent
involve situations where one spouse was found to have
intentionally evaded tax. There has been no showing by clear and
convincing evidence that petitioner’s father intended to file a
fraudulent return on his son’s behalf. Accordingly, there is no
need to consider whether the concept of joint and several
liability would apply in this case.
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