Michael J. Downing and Sandra M. Downing - Page 24

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               The very uncertainty as to Louisiana law that leads us to              
          conclude that the Commissioner’s position on income-splitting was           
          substantially justified, also leads us to conclude that                     
          respondent would have had to present an extraordinarily strong              
          case to persuade us by clear and convincing evidence that Sandra            
          believed her marriage contract filing was ineffective under                 
          Louisiana law.  See Danenberg v. Commissioner, supra at 393-394.            
               We have not found any evidence in the record, nor any                  
          evidence that respondent offered or otherwise contended was                 
          admissible, that would suggest that it was reasonable for                   
          respondent to believe that respondent could prove this essential            
          element of a fraud case against Sandra.  Indeed, respondent’s               
          discussion in the memorandum on Sandra’s motion for costs deals             
          only with Sandra’s involvement in the record-keeping and                    
          reporting regarding Michael’s business; it does not suggest, even           
          by way of a conclusory comment, that respondent expected to prove           
          by clear and convincing evidence that Sandra knew or believed               
          that Sandra had to report any omitted income from Michael’s                 
          business.                                                                   
               We conclude that respondent failed to establish that                   
          respondent’s position as to Sandra’s civil fraud penalty was                
          substantially justified.                                                    
               However, respondent’s failure to carry the heavy burden of             
          proof as to the 75-percent civil fraud penalty would have left in           






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