Louis D. Benn, Petitioner, v. Commissioner of Internal Revenue, Respondent, 394 F.2d 505 (5th Cir. 1968)

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US Court of Appeals for the Fifth Circuit - 394 F.2d 505 (5th Cir. 1968) May 16, 1968
Rehearing Denied June 21, 1968

William H. Deck, John Glandon Davies, Washington, D. C., for petitioner.

Lester R. Uretz, Chief Counsel, Eugene F. Colella, Atty., IRS, Mitchell Rogovin, Asst. Atty. Gen., Meyer Rothwacks, Lee A. Jackson, Joseph M. Howard, John P. Burke, Attys., Dept. of Justice, Washington, D. C., for respondent.

Before TUTTLE and SIMPSON, Circuit Judges, and BREWSTER, District Judge.


This appeal raises only questions of fact relating to the correctness of the Tax Court's determination of a substantial deficiency in petitioner's income for the calendar years 1953 and 1955 and of the existence of fraud with intent to evade the tax as to a part of the deficiencies. We conclude that the Tax Court was fully warranted in resolving both of these issues against the taxpayer.

The petitioner urges that the Tax Court record is inadequate to show the full facts for the tax years involved, because his brother, James Benn, who had conducted most of the transactions for him, failed to appear as a witness at the hearing. He requests a remand for the purpose of eliciting additional proof by James. No such motion was made in the Tax Court during the months the case was under submission, and we conclude that the Tax Court did not err in refusing thereafter to reopen the proceedings.

The decision of the Tax Court is