George Maciel - Page 52

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          “a conviction for willful falsification, under section 7206(1),             
          while not dispositive, will be one of the facts to be considered            
          in a trial on the merits.”  Wright v. Commissioner, supra at 643-           
          644 (emphasis added).                                                       
               Petitioner argues that comments the judge made during his              
          criminal sentencing colloquy are “highly persuasive” to whether             
          he fraudulently evaded the payment of taxes.  We disagree with              
          petitioner’s argument that statements the judge made during his             
          criminal sentencing hearing are in some way persuasive on the               
          issue of whether petitioner fraudulently evaded the payment of              
          tax.57  See N.Y. v. Julius Nasso Concrete Corp., 202 F.3d 82 (2d            


               56(...continued)                                                       
          (9th Cir. 1982).                                                            
               57Judge Fogel stated:                                                  
                 But I don’t think the conduct looked at in its                       
                 totality suggests that the reason * * *                              
                 [petitioner] diverted the money was to avoid                         
                 paying money to the Internal Revenue Service.  I                     
                 think that’s the finding that the Court would have                   
                 to make.  So I think we’re looking at the lower of                   
                 the two [sentencing] calculations.                                   
                 *      *       *       *        *       *     *                      
                 The Court has considered the entire 1990, 1991,                      
                 1992, but that there is no intent to evade that’s                    
                 established convincingly by the record.  So I                        
                 would find this is a [sentencing] guideline level                    
                 6 which gives the Court an opportunity or gives                      
                 the Court the discretion, rather, to impose                          
                 anywhere from zero to six months incarceration.                      







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