- 16 - 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 allPage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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