Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.richard K. Mcgirl and Christine M. Mcgirl, Appellants, v. Commissioner of Internal Revenue Appellee, 131 F.3d 143 (8th Cir. 1997)

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US Court of Appeals for the Eighth Circuit - 131 F.3d 143 (8th Cir. 1997)

Submitted: October 23, 1997Filed: November 28, 1997

Appeal from the United States Court

Before McMILLIAN, FLOYD R. GIBSON and BEAM, Circuit Judges.


Richard K. McGirl and Christine M. McGirl ("appellants") appeal from the United States Tax Court's1  decision upholding the Commissioner of Internal Revenue's determination that appellants' unreported income for the 1989, 1990, and 1991 tax years should not be reduced by the amount of loans that appellants maintain they obtained from a third party; that appellants failed to prove that their sandwich shop business incurred expenses in excess of those claimed on its 1989, 1990, and 1991 tax returns; and that the underreporting of the business's income for those years was due, in part, to fraudulent intent on the part of Richard K. McGirl. McGirl v. Commissioner, No. 11510-94, 1996 WL 385813 (T.C. July 11, 1996) (memorandum and order).

Jurisdiction was proper in the tax court based upon Section 6213 of the Internal Revenue Code ("I.R.C."). Jurisdiction on appeal is proper based upon I.R.C. § 7482(a) (1994). The notice of appeal was timely filed under Rule 13(a) of the Federal Rules of Appellate Procedure.

The tax court held that appellants failed to meet their burden of showing that they are entitled to additional deductions and that the Commissioner's determination of gross income is incorrect. Slip op. at 14-15, 23-24. Specifically, the tax court found it "improbable and unconvincing" that appellants received loans in the amounts that they sought to characterize as nonincome or incurred business expenses which were not reflected on the business's 1989, 1990, and 1991 tax returns. Id. at 20. Moreover, the tax court held that the Commissioner proved by clear and convincing evidence that at least some part of appellants' underpayments were attributable to fraud on the part of Richard K. McGirl. Id. at 35.

Having carefully reviewed the record, the parties' briefs, and the well-reasoned analysis of the tax court, we conclude that no error of law or fact appears and that an opinion would lack precedential value. See 8th Cir. R. 47B. Accordingly, we affirm the judgment of the tax court.

A true copy.




The Honorable Juan Vasquez, Judge, United States Tax Court