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 23

                                        -23-                                          
          indictment and petitioners’ plea agreements in this case are                
          probative of petitioners’ fraudulent intent.  Wright v.                     
          Commissioner, 84 T.C. 636, 643-344 (1985).  We also note as to              
          1990 that the Les both acknowledged in their separate plea                  
          agreements that the attorney checks were taxable income to                  
          petitioner, that they failed to advise their tax preparer about             
          the diverted funds, and that they knew that their taxable income            
          was underreported.                                                          
               We hold that petitioners are liable for the fraud penalties            
          for 1990 and 1991 determined by respondent under section 6663(a).           
          D.  Transferee Liability                                                    
               DDL has unpaid income tax liabilities which respondent seeks           
          to collect from the Les in their capacity as transferees of DDL’s           
          assets.  Section 6901 allows the Commissioner in certain cases to           
          collect from a transferee of assets unpaid taxes owed by the                
          assets’ transferor if a basis exists under State law or equity              
          for holding the transferee liable.  Bresson v. Commissioner,                
          111 T.C. 172 (1998), affd. 213 F.3d 1173 (9th Cir. 2000); Gumm v.           
          Commissioner, 93 T.C. 475, 479 (1989).  Section 6901 does not               
          create the liability of a transferee, but is merely a secondary             
          method for enforcing a transferor’s existing liability.  Mysse v.           
          Commissioner, 57 T.C. 680, 700-701 (1972).  Here, in order to               
          prevail on this issue, respondent must prove that he has                    
          satisfied the procedural requirements of section 6901(a) and that           






Page:  Previous  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  Next

Last modified: May 25, 2011