Michael J. Downing and Sandra M. Downing - Page 6

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          asserted alternatively, Michael would be liable for all                     
          deficiencies and additions to tax or penalties attributable to              
          the omitted income from his business.  Under this alternative               
          (which took into account some concessions respondent had already            
          made), respondent asserted deficiencies and penalties against               
          Michael totaling almost $70,000.                                            
               About 1 month before the trial, petitioners submitted to               
          respondent an offer to settle for $5,750 both petitioners’                  
          deficiencies, interest, and penalties for both years in issue.              
          Respondent rejected this offer 1 week after it was submitted.               
               In Downing I, we concluded that petitioners’ marriage                  
          contract was effective during the years in issue.   Accordingly,            
          we held that Sandra was not liable for any deficiency, addition             
          to tax, or penalty for any year in issue.  We also held that                
          respondent succeeded in proving by clear and convincing evidence            
          that Michael’s business produced substantially more income than             
          Michael reported for the years in issue, resulting in                       
          deficiencies, and that these deficiencies were due to Michael’s             
          fraud.  Our determination on the marriage contract issue mooted             
          respondent’s determinations of penalties against Sandra, and so             
          we did not make any finding as to whether Sandra’s actions were             
          fraudulent or negligent.                                                    
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