Ferdinand Decaprio and Claire Decaprio - Page 12
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wise to proceed under Rule 123(a).5 Consequently, even though
petitioner initially denied fraud in the reply, it is within our
discretion under Rule 123(a) to enter a default decision sustain-
ing all deficiencies in, and additions to, tax remaining in this
case, including the additions to tax under section 6653(b) for
1983, 1984, and 1985, without requiring respondent to prove fraud
affirmatively.6 Gordon v. Commissioner, 73 T.C. 736, 740-742
(1980). It would be a waste of the Court's time and resources to
require affirmative proof of fraud in the present case where
petitioner has unequivocally indicated that he will no longer
contest, inter alia, the additions to tax under section 6653(b).
Id. at 742.
Under the particular circumstances presented here, we find
that petitioner has not only failed to carry his burden of proof
as to all issues remaining in this case on which he has the
5 Rule 123(a) provides in pertinent part that a party may be
held in default if such party "has failed to plead or otherwise
proceed as provided by these Rules".
6 We note that we find no merit in petitioner's allegation in
the reply that the additions to tax for fraud are invalid under
the double jeopardy clause of the Fifth Amendment. The addition
to tax for fraud is a civil, and not a criminal, provision that
was enacted "primarily as a safeguard for the protection of the
revenue and to reimburse the Government for the heavy expense of
investigation and the loss resulting from the taxpayer's fraud."
Helvering v. Mitchell, 303 U.S. 391, 401 (1938). It is well
established that a conviction for tax fraud under sec. 7201 and
the imposition of the addition to tax for fraud under sec.
6653(b) do not place a taxpayer in double jeopardy within the
meaning of the Fifth Amendment. See Helvering v. Mitchell, supra
at 399-404; United States v. Alt, 83 F.3d 779, 781-784 (6th Cir.
1996); Ianniello v. Commissioner, 98 T.C. 165, 176-185 (1992).
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