Neaderland
v.
Comm'r of Internal Revenue

Tax Court of the United States.Jun 25, 1969
52 T.C. 532 (U.S.T.C. 1969)

Docket No. 5942-66.

1969-06-25

ROBERT NEADERLAND, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Carl F. Bauersfeld, for the petitioner. Wallace Musoff and Marwin A. Batt, for the respondent.


Carl F. Bauersfeld, for the petitioner. Wallace Musoff and Marwin A. Batt, for the respondent.

Petitioner, a real estate broker, earned and reported commissions for the years 1954 and 1955 in the amounts of $58,573.31 and $96,307.23, respectively. On his returns for 1954 and 1955 he claimed business expense deductions in the amounts of $31,000 and $38,000, respectively. After petitioner was indicted for filing false and fraudulent returns for 1954 and 1955, he filed amended returns for said years taking business expense deductions in reduced amounts. The parties stipulated that the $31,000 in business expenses claimed as a deduction on petitioner's original 1954 return was excessive by at least $18,823.67 and the $38,000 in business expenses claimed as a deduction on petitioner's original 1944 return was excessive by at least $20,090.87. Other evidence reviewed and it is, held, that petitioner failed to sustain his burden of showing he was entitled to more than the $2,000 business expense deduction allowed by respondent for each of the years in issue. Held, further, that respondent sustained his burden of proving that petitioner's underpayment of taxes for 1954 and 1955 was due, at least in part, to fraud with intent to evade tax. Held, further, respondent is not estopped from raising the issue of fraud because the U.S. District Court for the Southern District of New York, in a prior criminal tax-evasion case against petitioner for the same years, granted a motion for judgment of acquittal.

MULRONEY, Judge:

Respondent determined deficiencies in income tax and additions to tax for fraud under section 6653(b), I.R.C. 1954, against petitioner, as follows:

All section references are to the Internal Revenue Code of 1954, as amended, unless otherwise noted.

+-------------------------------------+ ¦ ¦ ¦Addition to tax ¦ +------+------------+-----------------¦ ¦Year ¦Deficiency ¦sec.6653(b) 2 ¦ +------+------------+-----------------¦ ¦ ¦ ¦ ¦ +------+------------+-----------------¦ ¦1954 ¦$7,521.24 ¦$9,660.01 ¦ +------+------------+-----------------¦ ¦1955 ¦14,611.56 ¦15,181.76 ¦ +-------------------------------------+

The issues for decision are: (1) The correct amount to be allowed petitioner as business expense deductions in 1954 and 1944; (2) whether any part of the underpayment of taxes resulting from petitioner's overstatement of business deductions in each of the years in issue was doe to fraud with intent to evade tax; (3) whether the statute of limitations bars assessment and collection of the deficiencies; and (4) whether the respondent is estopped from raising the issue of fraud where a U.S. District Court in a prior criminal tax-evasion case for the same years granted a motion for judgment of acquittal.

FINDINGS OF FACT

Some of the facts have been stipulated and they are found accordingly.

Robert Neaderland was a resident of New York, N.Y., at the time he filed his petition in this case. He filed his income tax returns for 1954 and 1955 with the district director of internal revenue, Upper Manhattan District, N.Y. The 1954 return was filed on or before April 15, 1955, and the 1955 return was filed on October 5, 1956, pursuant to an extension of time granted by the district director of internal revenue.

Petitioner filed ‘amended’ income tax returns for 1954 and 1955 on February 26, 1962, and March 8, 1962, respectively, with the district director of internal revenue, Manhattan District, N.Y. The parties have stipulated that the $31,000 in business expenses claimed by petitioner as a deduction on his original 1954 income tax return was excessive by at least $18,823.67 and that the $38,000 in business expenses claimed by petitioner as a deduction on his original 1955 income tax return was excessive by at least $20,090.87.

During the taxable years 1954 and 1955 petitioner was employed by Douglas L. Elliman & Co., Inc., a real estate company, as a real estate salesman-broker. He was also a vice president, a member of the board of directors, and a stockholder of Elliman during the years in issue.

Petitioner's only sources of income during the years 1954 and 1955 emanated from Elliman and consisted of the following:

+-----------------------------------------+ ¦Source of income ¦1954 ¦1955 ¦ +-------------------+----------+----------¦ ¦Commissions earned ¦$58,573.31¦$96,307.23¦ +-------------------+----------+----------¦ ¦Director's fees ¦225.00 ¦280.00 ¦ +-------------------+----------+----------¦ ¦Dividends ¦1,275.00 ¦2,600.00 ¦ +-------------------+----------+----------¦ ¦Total income earned¦60,073.31 ¦99,187.23 ¦ +-----------------------------------------+

The commissions earned by petitioner represent his share of the gross commissions earned by Elliman as a result of petitioner's activities as a real estate salesman-broker.

The net amounts received by petitioner from Elliman during the taxable years in issue are as follows:

+----------------------------------------------------+ ¦ ¦1954 ¦1955 ¦ +------------------------------+----------+----------¦ ¦Total earnings ¦$60,073.31¦$99,187.23¦ +------------------------------+----------+----------¦ ¦Less: ¦ ¦ ¦ +------------------------------+----------+----------¦ ¦Withholding tax ¦10,657.68 ¦17,299.59 ¦ +------------------------------+----------+----------¦ ¦Other deductions ¦1,020.83 ¦640.85 ¦ +------------------------------+----------+----------¦ ¦Previous advance repaid ¦2,500.00 ¦ ¦ +------------------------------+----------+----------¦ ¦Total deductions from earnings¦14,178.51 ¦17,940.44 ¦ +------------------------------+----------+----------¦ ¦Net amounts received ¦45,894.80 ¦81,246.79 ¦ +----------------------------------------------------+

During the taxable years 1954 and 1955 petitioner maintained two bank accounts, both of which were checking accounts. One was with the Fifth Avenue Branch of the Bank of New York and the other was with the Sterling National Bank & Trust Co. He opened his account with the Sterling National Bank & Trust Co. on June 9, 1954, with a $10,000 deposit consisting of funds transferred from his account maintained with the Bank of New York.

Petitioner either deposited to his bank accounts or cashed the net amounts of commissioners earned, director's fees, and dividends received from Elliman during the taxable years 1954 and 1955, as follows:

+-----------------------------------------------+ ¦ ¦ ¦ ¦Deposited ¦ +------+------+------+--------------------------¦ ¦Source¦Amount¦Cashed¦Bank of ¦Sterling¦Total ¦ +------+------+------+--------+--------+--------¦ ¦ ¦ ¦ ¦New York¦National¦income ¦ +------+------+------+--------+--------+--------¦ ¦ ¦ ¦ ¦ ¦Bank ¦deposits¦ +------+------+------+--------+--------+--------¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ +-----------------------------------------------+

1954 Commissions $44,394.80 0 $35,527.07 $8,867.73 $44,394.80 Dividends 1,275.00 $1,150.00 125.00 0 125.00 Director's fees 225.00 225.00 0 0 0 Totals 45,894.80 1,375.00 35,652.07 8,867.73 44,519.80

1955 Commissions $78,366.79 0 $3,428.56 $74,938.23 $78,366.79 Dividends 2,600.00 $2,600.00 0 0 0 Director's fees 280.00 280.00 0 0 0 Totals 81,246.79 2,880.00 3,428.56 74,938.23 78,366.79

The only funds that petitioner had available to him during the entire years 1954 and 1955 consisted of withdrawals that he made from his two bank accounts and dividend and director's fees checks which he cashed.

The petitioner's total available funds and known personal expenditures for the taxable year 1954 are as follows:

+--------+ ¦1954 ¦ +--------¦ ¦ ¦ ¦ ¦ +--------+

Total funds available for expenditures Withdrawals: Bank of New York $31,982.02 Sterling National Bank 5,724.72 Total 37,706.74 Less: Transfer of funds Bank of New York to Sterling 10,000.00 Balance 27,706.74 Add: Dividend checks cashed 1,150.00 Director fees cashed 225.00 Total available $29,081.74

Known personal expenditures Essex House rent $2,459.88 $2,459.88 Loans and repayment of loans: Bank of New York—repayment 500.00 Lucille Lewis—repayment 3,900.00 Ann Smith—loan 1,000.00 Joe Baker—loan 500.00 5,900.00 Charitable and other contributions 925.00 925.00 Taxes: New York State 809.32 Federal 1,219.57 2,028.89 Capital expenditures: Cadillac 4,519.95 Stock purchase 750.00 5,269.95 Miscellaneous expense: Interest—Bank of New York 5.73 Mary Jacobs—sister 625.00 Fairview Heights Cemetery 124.00 Mt. Zion Cemetery 41.00 Hygrade monuments 17.50 Erickson boat delivery 501.74 Morris Steinberg—tailor 375.00 1,689.97 Total known personal expenditures 18,273.69

The petitioner's total available funds and known personal expenditures for the taxable year 1955 are as follows:

+--------+ ¦1955 ¦ +--------¦ ¦ ¦ ¦ ¦ +--------+

Total funds available for expenditures Withdrawals: Bank of New York $6,316.01 Sterling National Bank 19,329.66 Total 25,645.67 Less: Bank adjustment 2/2/55 100.00 Balance 25,545.67 Add: Dividend check cashed 2,600.00 Director feeds cashed 280.00 Total available $28,425.67

Known personal expenditures

Essex House rent $2,459.88 $2,459.88 Loans and repayment of loans: Bank of New York— repayment 1,000.00 1,000.00 Charitable and other contributions 1,530.00 1,530.00 Taxes: New York State 798.64 Federal 520.00 1,318.64 Capital expenditures: Cadillac 3,400.00 3,400.00 Miscellaneous expense: Interest—Bank of New York 25.56 Mary Jacobs—sister 625.00 Fairview Heights Cemetery 145.00 Morris Steinberg—tailor 615.00 Rollnick—tailor 695.25 2,105.81 Total known personal expenditures 11,814.33

For the years 1954 and 1955 petitioner prepared his own income tax returns and utilized W-2 forms furnished by Elliman. On his 1954 return he took a deduction entitled ‘Business Expenses-Carfares-Taxi Fares, Entertainment of Customers, Etc. not reimbursed by Company $31,000.00.’ On his 1955 return he took a business expense deduction entitled ‘Travel & Entertainment Expenses not reimbursed’ for $38,000.

In May 1957 the Internal Revenue Service met with petitioner concerning his 1954 and 1955 income tax returns. He was eventually advised that criminal proceedings were contemplated and at that time he obtained counsel and secured the services of a certified public accountant.

On April 11, 1961, the grand jury returned an indictment in the U.S. District Court for the Southern District of New York, charging in two counts that petitioner Robert Neaderland did willfully and knowingly attempt to evade and defeat a large part of his income taxes due and owing by him to the United States of America for the calendar years 1954 and 1955 by filing and causing to be filed false and fraudulent income tax returns by understating his income and income tax in violation of section 7201 of the Internal Revenue Code of 1954. On April 18, 1961, petitioner, as defendant, was arraigned and entered a plea of not guilty to the charges set forth against him in said indictment. On March 10, 1965, a trial was begun in the U.S. District Court for the Southern District of New York, before a jury. On March 15, 1965, after the Government rested its case and before petitioner, as defendant, opened his case, U.S. District Judge Sugarman granted defendant's motion for judgment of acquittal.

In 1962 petitioner filed ‘amended’ returns for both taxable years 1954 and 1955 and paid additional amounts of money as taxes for each of those years in the respective amounts of $11,798.77 and $15,751.96. He took business expense deductions in reduced amounts in those amended returns as follows:

+----------------------------------------------------+ ¦ ¦1954 ¦1955 ¦ +--------------------------------+---------+---------¦ ¦ ¦ ¦ ¦ +--------------------------------+---------+---------¦ ¦Telephone ¦$400.82 ¦$470.11 ¦ +--------------------------------+---------+---------¦ ¦Auto depreciation ¦2,000.00 ¦2,000.00 ¦ +--------------------------------+---------+---------¦ ¦Other travel, entertainment, etc¦9,775.51 ¦15,439.02¦ +--------------------------------+---------+---------¦ ¦ ¦ ¦ ¦ +--------------------------------+---------+---------¦ ¦Total ¦12,176.33¦17,909.13¦ +----------------------------------------------------+

In his notice of deficiency dated August 1966, respondent determined that only $2,000 for each of the taxable years 1954 and 1955 was allowable as a business expense deduction. He disallowed the rest by ‘reason of the fact that no evidence or information was submitted in substantiation thereof.’

OPINION

The main issue before us is whether any part of petitioner's understatement of taxes for 1954 and 1955 was due to fraud with the intent to evade or defeat tax. We also must decide whether a business expense deduction in issue for each year is allowable in excess of the amounts already allowed. Unless there is fraud the statute of limitations will operate to bar the collection of any deficiencies. As will be seen later, the issue of fraud is decided for respondent, therefore, we will turn first to the issue concerning the business deductions to determine the extent of petitioner's tax liability for each year in issue.

Respondent determined deficiencies in petitioner's income tax in the amounts of $7,521.24 for 1954 and $14,611.56 for 1955. In arriving at these determinations he allowed $2,000 for each year as business expenses. This means petitioner has the burden of proving that he is entitled to more than $2,000 for each year as business expense deductions already allowed by respondent. He must overcome the presumption of correctness that attaches to respondent's determination. Rule 32, Tax Court Rules of Practice; Welch v. Helvering, 290 U.S. 111 (1933).

Petitioner claimed in his amended returns filed in 1962 that he is entitled to business deductions for each year in the amount of $12,176.33 for 1954 and in the amount of $17,909.13 for 1955. No substantive documentary evidence was offered to support these business deductions taken by petitioner in his amended returns.

In an attempt to substantiate his deductions petitioner testified in a general and conclusory manner that he had a considerable amount of business expenses in each year in issue. He referred to some specific real estate transactions he was involved in and customers he dealt with to show how his expenses arose stating that ‘I took customers to prize fights, I took them to ball games, I took them to shows. I took them to affairs. I took them to special dinners and I paid the bills.’ At no time did he match up any specific expense or amount with any specific person or place. When he was asked to substantiate his 1954 and 1955 expenses in 1957 by respondent's representative and then again at the trial he was unable to do it. He claimed that he had records but that they were lost. In reference to his alleged car expenses for business he testified that he ‘sometimes' recorded them on ‘pads,‘ but at no time were any pads ever produced.

Evidently petitioner felt he could sustain his burden of proof by simply introducing into evidence canceled checks, bank statements, and a few receipts and testifying, generally, that his expenditures were for business purposes. This type of evidence in no way shows us for what purpose the expenditures were made. Other than his own general testimony he presented no records or proof of any substance as to the purpose for the expenditures he actually incurred. This kind of testimony does not provide a foundation for allowing disallowed expenses as ‘ordinary and necessary’ business expenses.

Petitioner argues that pursuant to the decision in Cohan v. Commissioner, 39 F.2d 540 (C.A. 2, 1930), he is entitled to an estimated allowance of business expenses for 1954 and 1955. This is true only when petitioner's evidence indicates and shows that he had in fact incurred business expenses in excess of the amount already allowed. That is not the case here. Petitioner has failed to show he is entitled to more than was allowed.

Petitioner's testimony and evidence for 1954 and 1955 were so general and of such a summary nature that we cannot conclude for either year that he has sustained his burden of proof. Reginald G. Hearn, 36 T.C. 672 (1961), affd. 309 F.2d 431 (C.A. 9, 1962), certiorari denied 373 U.S. 909 (1963).

We now turn to the fraud issue under section 6653(b). On this issue, the burden of proof is on respondent to show that a part of the understatement of taxes for each year was due to fraud. He must, to sustain his burden, present clear and convincing evidence that petitioner knowingly understated his taxable income on his income tax return for each year with the specific purpose and intent of evading tax. Sec. 7454(a); Charles E. Mitchell, 32 B.T.A. 1093 (1935), affd. 303 U.S. 391 (1938); and Arlette Coat Co., 14 T.C. 751 (1950).

Petitioner prepared his own 1954 and 1955 income tax returns and he took business deductions for each year in the respective amounts of $31,000 and $38,000. He now has admitted by filing amended returns in 1962, and by pleading admission, and by stipulation, and on brief, that the $31,000 deduction for 1954 was excessive by at least $18,823.67 and that the $38,000 deduction for 1955 was excessive by at least $20,090.87. The large amount of these admitted overstatements tends to nullify any thought of honest error. We have also held that petitioner failed to prove that he was entitled to business deductions for each of those years in excess of the $2,000 allowed each year by respondent. In other words, petitioner has understated his taxable income by deliberately grossly overstating his deductions. There is no doubt that for purpose of fraud an understatement of taxes can be accomplished by an overstatement of deductions as well as by an omission of income. John McKeon, 39 B.T.A. 813 (1939), and Estate of Louis L. Briden, 11 T.C. 1095 (1948), affirmed sub nom. Kirk v. Commissioner, 179 F.2d 619 (C.A. 1, 1950).

We are convinced that petitioner is a highly intelligent individual who way very successful in his field of endeavor. His earnings during the years involved were substantial, amounting to $60,073.31 for 1954 and $99,187.23 for 1955. His activities during the years in issue encompassed the sales and leases of parcels of realty which involved millions of dollars. In fact, he consummated somewhere near 16 million dollars' worth of real estate transactions in 1955 alone. It is a fair inference that petitioner, possessing the business acumen he undoubtedly possessed, could hardly have inadvertently overstated his business expense deductions to the extent that he did. It would be difficult to believe he could have honestly thought his business expenses in 1954 and 1955 were $31,000 and $38,000, respectively, when he filed his returns in view of his admission a few years later that his business expenses for said years were less than half of the reported amounts. We are convinced that he knew what he was doing when he filed the returns and his large overstatements of business expenses were with the willful intent to defeat and evade the tax. Cf. Eugene Vassallo, 23 T.C. 656 (1955); Joseph H. Imeson, 14 T.C. 1151 (1950); and Luerana Pigman, 31 T.C. 356 (1958).

Petitioner's explanation of the overstatements of deductions for each year is simply ‘honest mistake.’ He told a confusing story at the trial that he thought his W-2 forms supplied by Elliman for each year included in the ‘Total Wages' payments made to third-party lawyers and brokers who participated in his real estate transactions. He characterized these payments as ‘payments off the top’ and said that, in some manner which is not clear, he used them in computing his business deductions for 1954 and 1955. This story about ‘payments off the top’ seems to have been advanced for the first time at the trial and it is not consistent with what he had previously told respondent's representative and his own certified public accountant during the investigations and audit of his 1954 and 1955 returns. While he mentioned ‘kickbacks' to them, he never fully explained what he meant and claimed his expenses to be moneys he had spent. Then, at the trial, he admitted that the ‘payments off the top’ that he was referring to were payments made by his employer, Elliman, out of its own funds and not payments that he, himself, had made. His certified public accountant testified that petitioner told him in discussing his business deductions for each year in issue that ‘he thought he spent the money’ and then later told him that ‘he had run several or many very costly parties and that he evidently figured that that was a pattern of living during those years, and he made no attempt to build up an amount for a deduction, but took a round figure in each year. That was something that he picked out of a hat.’ Petitioner also admitted that his descriptions of his business deductions on his 1954 and 1955 returns were inaccurate if his explanation at the trial was to be considered credible.

The inconsistencies that exist in petitioner's explanations and descriptions of his business deductions for each year in issue render his testimony unreliable and not persuasive. The story about the so-called payments off the top appears to be an afterthought, not fully developed until he was told by his accountant that he just could not have possibly had the expenses he claimed to have on his 1954 and 1955 returns.

Finally, petitioner's conduct throughout the investigation of both of his returns and on the witness stand was not the best. On more than one occasion respondent's representative had to contact petitioner when petitioner had agreed to contact him. He claimed to have records which he never produced and he was generally misleading. On the witness stand he was evasive and unresponsive to questions addressed to him by respondent's attorney. A failure to fully cooperate with respondent's representative, as here, is also indicative of fraud. Cf. Jacob D. Farber, 43 T.C. 407 (1965).

In view of all of the facts in this case we conclude that petitioner's underpayment of taxes for 1954 and 1955 was due, at least in part, to fraud with the intent to evade tax. We cannot believe that petitioner acted innocently and in good faith or that his large overstatements of business expenses were the result of honest mistake. Respondent has met his burden of proof. Webb v. Commissioner, 394 F.2d 366 (C.A. 5, 1968), affirming a Memorandum Opinion of this Court.

Our finding of fraud disposes of the issue concerning the statute of limitations.

Petitioner amended his petition to allege that the respondent is estopped from raising the issue of fraud because the U.S. District Court, in a prior criminal tax evasion case for the same years, granted a motion for judgment of acquittal.

There is no merit in this argument. A judgment of acquittal based on a jury verdict in a criminal tax-evasion case does not work an estoppel in an action for fraud under section 6653(b) involving a civil liability. See Helvering v. Mitchell, 303 U.S. 391 (1938). The result is the same when the judgment of acquittal is based on a granted motion for judgment of acquittal. United States v. Real Estate Boards, 339 U.S. 485 (1950). See also 4 Barron & Holtzoff, Federal Practice & Procedure— Criminal, sec. 2221 (1951). Rule 29 of the Rules of Criminal Procedure provides the motion for judgment of acquittal should be sustained ‘if the evidence is insufficient to sustain a conviction.’ And the Supreme Court has held in American Tobacco Co. v. United States, 328 U.S. 781, 787 fn. 4 (1946), that: ‘The verdict in a criminal case is sustained only when there is ‘relevant evidence from which the jury could properly find or infer, beyond a reasonable doubt,‘ that the accused is guilty.’

Petitioner, relying on United States v. Feinberg, 140 F.2d 592 (C.A. 2, 1944), contends that the standard of proof used in a criminal case in the Second Circuit by the Federal courts for ruling on a motion for judgment of acquittal requires no more proof or no higher degree of proof than the standard applicable in a civil case. Petitioner seems to admit that in most other circuits the court must grant the motion for acquittal if the judge reasonably thinks that the evidence for conviction does not meet what can be called the ‘beyond a reasonable doubt’ test. His argument is that in the Second Circuit because of statements in the Feinberg case the court must grant the motion for acquittal if the judge reasonably thinks that the evidence for conviction does not meet the ‘preponderance’ test or the same standard required in a civil case. Based on this rule, which petitioner says exists in the Second Circuit, petitioner argues the judgment of acquittal in the criminal case for tax evasion rests on a finding of lack of preponderance of evidence, the same or a lesser quantum of proof required in the instant case and therefore respondent is estopped by the judgment in the criminal case from asserting fraud in this case.

Petitioner attempts to distinguish United States v. Real Estate Boards, supra, by pointing out this was an appeal from the District of Columbia District Court where the standard of proof to be applied in considering a motion for directed verdict of acquittal is the sufficiency of the evidence to overcome any reasonable doubt as to defendant's guilt. He contends the case is not authority for respondent here where the trial was governed by the preponderance-of-evidence rule of the Second Circuit. But neither the opinion of the District Court nor of the Supreme Court indicates the standard of proof required or applied in the consideration of the motion for acquittal.

It must be admitted that an evenhanded application of the law of estoppel would seem to call for the estoppel preclusion if the first judgment in the earlier case rests on no higher degree of proof than the standard applicable here in this civil case. But we are not convinced there is a real difference between the general rule and the rule that is actually being applied in the Second Circuit with respect to the quantum of proof necessary to defeat a motion for judgment of acquittal in a criminal case. United States v. Melillo, 275 F.Supp. 314 (E.D.N.Y. 1967); 8 Moore, Federal Practice, par. 29. In the last-cited text the author reviews the proof-requirement rule of the Second Circuit that the trial court must apply in passing upon a motion for acquittal and the general rule applied in other circuits. Much authority is cited to show there is probably no substantive difference between the two rules. The author goes on to state:

Assuming that there is some substantive difference between the two rules, which is by no means clear, it is doubtful whether the use of one as opposed to the other will materially affect the decision in a given case. * * *

It is difficult to conceive of a judge who has ever tried a criminal case, or sentenced a defendant, as being unaware of the qualitative difference between criminal and civil cases. (22) It is equally difficult to imagine that the Second Circuit rule was intended to obliterate the difference between the degree of proof required in civil and criminal cases. (23) (Footnotes omitted.)

In United States v. Melillo, supra, the court stated: ‘The question of how much evidence is required to allow a criminal case to go to the jury ‘is not entirely free from doubt’ in this circuit.' However, after reviewing a number of cases the court said that ‘The rule laid down in the Feinberg case appears to have lost its vitality.’ The court then went on to apply the reasonable-doubt test to a motion for judgment of acquittal in a criminal case.

There is no use discussing all of the other cases in the Second Circuit where mention is made as to the quantum of proof necessary to defeat a motion for acquittal. They are not cases involving estoppel. We agree with the statement of the court in United States v. Melillo, supra at 318, 319:

Apart from authority, experience and policy, the language of the Rules of Criminal and Civil Procedure require the court to apply a higher standard in criminal than in civil cases. On the one hand, the motion for a directed verdict, pursuant to Rule 50 of the Civil Rules, or for an involuntary dismissal under Rule 41(b) of the Civil Rules must be granted in the run-of-the-mill civil case if a reasonable juror cannot find it more probable than not that the proponent has established his case. On the other hand, Rule 29 of the Criminal Rules requires the court to grant a motion for judgment of acquittal ‘if the evidence is insufficient to sustain a conviction’. It is insufficient, the Supreme Court has told us in American Tobacco, if a reasonable juror would have to entertain a reasonable doubt about defendant's guilt. Thus, even if the courts wished to use the same standards in civil and criminal cases, the rules preclude them from doing so.

We are of the opinion that the judgment of acquittal in the criminal case based on section 7201 does not work an estoppel against respondent in this civil case based on section 6653.

We hold that respondent was correct in his determination of deficiencies for 1954 and 1955; petitioner's underpayment of taxes for each of those years was due, at least in part, to fraud with intent to evade tax, and additions to tax for fraud were properly imposed and respondent is not estopped from raising the issue of fraud by a judgment of acquittal in a prior criminal case for tax evasion for the same years.

Decision will be entered for the respondent. 2. The 50-percent penalty for fraud under sec. 6653(b) was computed on the original tax liability as determined by respondent for each year in issue. This original tax liability was reduced when petitioner in 1962 filed amended returns for 1954 and 1955 in which he paid additional sums of money as taxes for those years.