William Lenihan - Page 16

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          tax for fraud under section 6653(b)(1) on account of the                    
          taxpayer’s failure to report income from sales of heroin                    
          notwithstanding that the Commissioner, who bore the burden of               
          proof because of the claim of fraud, had failed to show that the            
          taxpayer’s costs of goods sold and deductible expenses did not              
          exceed his receipts from those sales.  We pointed out that, in a            
          merchandising business, gross receipts from sales must be reduced           
          by cost of goods sold to determine gross income from sales.  Sec.           
          1.61-3(a), Income Tax Regs.  Indeed, we stated that an                      
          underpayment of tax resulting from unreported gross receipts is             
          only possible if those unreported gross receipts are not exceeded           
          by the cost of the goods sold and deductible expenses.  We                  
          continued:                                                                  
                    Nevertheless, even in criminal tax evasion cases,                 
               where the Government bears the greater burden of proof                 
               beyond a reasonable doubt, it is well settled--“that                   
               evidence of unexplained receipts shifts to the taxpayer                
               the burden of coming forward with evidence as to the                   
               amount of offsetting expenses, if any.”  Siravo v.                     
               United States, 377 F.2d 469, 473 (1st Cir. 1967).                      
               Accord, e.g., United States v. Garguilo, 554 F.2d 59,                  
               62 (2d Cir. 1977); Elwert v. United States, 231 F.2d                   
               928, 933 (9th Cir. 1956); United States v. Link, 202                   
               F.2d 592, 593 (3d Cir. 1953); United States v. Bender,                 
               218 F.2d 869, 871 (7th Cir. 1955); Bourque v.                          
               Commissioner, T.C. Memo. 1980-286 (applying the general                
               rule to cost of goods sold).  * * *                                    
          We explained that the settled rule was based on the rationale               
          that, in the case of a taxpayer who has not entirely omitted                
          receipts from an activity from his return, it can be presumed               
          that the taxpayer, desiring to minimize his tax, has reported all           





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