Dennis E. Runkle and Debra A. Runkle - Page 29

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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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