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Code provisions upon which respondent relied are not “positive
law.” Courts have rejected positive law arguments as frivolous,
baseless, specious, and preposterous. United States v. Maczka,
957 F. Supp. 988, 991 (W.D. Mich. 1996); Sloan v. United States,
621 F. Supp. 1072, 1076 (N.D. Ind. 1985), affd. in part and
dismissed in part 812 F.2d 1410 (7th Cir. 1987).
Moreover, Mr. Runkle explained in his opening statement at
trial that he understood that the arguments he raised in quashing
the summonses and in filing the motion to dismiss were frivolous.
See, e.g., Oscanyan v. Arms Co., 103 U.S. 261, 263 (1881) (a
party may be bound by admissions made in the party’s opening
statement); United States v. McKeon, 738 F.2d 26, 30 (2d Cir.
1984). He explained that his intent in asserting these arguments
was to use them as a negotiation “tool” to force respondent to
concede the fraudulent failure to file additions.
Although tax protester arguments may not be evidence of
fraud in and of themselves, they may be indicative of fraud if
made in conjunction with affirmative acts designed to evade
paying Federal income tax. See Kotmair v. Commissioner, 86 T.C.
1253 (1986); Fleischner v. Commissioner, T.C. Memo. 1995-389.
Petitioners took or made affirmative acts designed to evade their
tax liability. These affirmative acts include failing to file
income tax returns, failing to maintain adequate records,
understating substantial income, concealing assets, failing to
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