Mario Biaggi and Estate of Marie Biaggi - Page 11




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            petitioner’s omissions, thus, clearly and convincingly establish                           
            underpayments for 1983 and 1985.                                                           
                        b.  Fraudulent Intent                                                          
                  The second element of section 6653(b)(1) is the taxpayer's                           
            state of mind, to wit, whether the taxpayer intended to evade tax                          
            believed to be owing by conduct intended to conceal, mislead, or                           
            otherwise prevent the collection of such tax.  See, e.g.,                                  
            Recklitis v. Commissioner, 91 T.C. 874, 909 (1988).  The                                   
            existence of a fraudulent state of mind is a question of fact to                           
            be determined from the entire record.  See, e.g., id.  Fraud is                            
            never imputed or presumed; it may, however, be proved by                                   
            circumstantial evidence, because direct proof of the taxpayer's                            
            intent is rarely available.  See, e.g., id. at 910-911.                                    
            Respondent need not establish that tax evasion was a primary                               
            motive of petitioner but may satisfy his burden by showing that a                          
            tax-evasion motive played any part in petitioner's conduct,                                
            including conduct also serving to conceal another crime.  See                              
            Spies v. United States, 317 U.S. 492, 499 (1943)("If the tax-                              
            evasion motive plays any part in such conduct the offense may be                           
            made out even though the conduct may also serve other purposes                             
            such as concealment of other crime."); Recklitis v. Commissioner,                          
            supra at 910.                                                                              
                  Petitioner was convicted under section 7206(1) of willfully                          
            making false statements on his Federal income tax returns for                              






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