- 52 -
“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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