Jerry and Patricia A. Dixon, et al. - Page 15

                                       - 104 -                                        
               When DeCastro wrote to McWade confirming their deal,                   
          respondent had not asserted fraud for any of the Thompsons’                 
          taxable years that were before the Court, in all three of which             
          the Thompsons had claimed substantial Kersting-related                      
          deductions.  Respondent, in fact, has not asserted fraud charges            
          against any of the test case or nontest case petitioners with               
          respect to Kersting deficiencies.  Nor, for that matter, did                
          respondent even assert fraud charges against Kersting himself,              
          when respondent issued a deficiency notice to Kersting for his              
          failure to report more than $11 million of fee income he received           
          over a 7-year period (1982-88) from the Kersting project                    
          petitioners through his alter ego corporations.  See Kersting v.            
          Commissioner, T.C. Memo. 1999-197.                                          
               Nor do we believe the facts of the Thompsons’ case would               
          support an assertion--much less a finding--of fraud against Mr.             
          Thompson.  Petitioners point to Mr. Thompson’s trial testimony,             
          in which he “admitted that he had taken Kersting deductions while           
          believing the debt to which the deductions related would not have           
          to be repaid.”  We believe this testimony is true and consistent            
          with our findings in Dixon II and Dixon III regarding the                   
          Kersting shelters.  We further believe this testimony falls far             
          short of demonstrating, by clear and convincing evidence, that,             
          by claiming the Kersting deductions, Mr. Thompson specifically              
          intended to evade a tax known to be owing.  Our skepticism is               






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