David D. Le, a.k.a. David Dung Le, a.k.a. Dung V. Le and Kim Huong Le, a.k.a. Kim Le, et al. - Page 15

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          because California had suspended DDL’s powers, rights, and                  
          privileges.  We noted that California’s action resulted from                
          DDL’s failure to pay its California income taxes.  Upon appeal,             
          our decision in David Dung Le, M.D., Inc. v. Commissioner, supra,           
          was affirmed by the Court of Appeals for the Ninth Circuit.                 
                                       OPINION                                        
               The parties assert, and we agree, that petitioners have the            
          burden of proof as to all issues in this case except the issues             
          of transferee liability and fraud penalties.  Respondent bears              
          the burden of proof as to these latter two issues.  Secs.                   
          6901(a), 7454(a); Rule 142(b), (d).                                         
          A.  Status of DDL                                                           
               Petitioners argue that petitioner did not operate his                  
          medical practice in a corporate form in 1990 and 1991.  We                  
          disagree.  Petitioners agree that petitioner initially conducted            
          his medical practice as a corporation but argue that petitioner             
          abandoned practicing medicine through his corporation when he               
          moved to Orange County.  On the basis of the record as a whole,             
          including our observation and perception of petitioner when he              
          testified at trial about this issue, we find petitioner’s                   
          testimony incredible and decline to rely upon it to support                 
          petitioners’ positions herein.10  Neonatology Associates, P.A. v.           

               10 For similar reasons, we also find Ms. Le’s testimony                
          incredible and decline to rely upon it to support petitioners’              
                                                             (continued...)           





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