- 18 - 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 We note that the cases respondent relies on are dated and have been superseded by statute.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.Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011