Willis Clark - Page 12




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          caused thereby to respondent cannot be justified.  We shall grant           
          respondent’s motion to dismiss pursuant to Rule 123(b) and shall            
          enter a decision against petitioner as to the determined                    
          deficiencies for taxable years 1993 and 1994.                               
          II.  Fraud Penalties                                                        
               Section 6663(a) provides for the imposition of a penalty in            
          “an amount equal to 75 percent of the portion of the underpayment           
          which is attributable to fraud.”  In addition, section 6663(b)              
          specifies that if any portion of the underpayment is attributable           
          to fraud, the entire underpayment is treated as attributable                
          thereto, except and to the extent that the taxpayer establishes             
          some part is not due to fraud.                                              
               Respondent bears the burden of proving the applicability of            
          the civil fraud penalty by clear and convincing evidence.  Sec.             
          7454(a); Rule 142(b).  To sustain this burden, respondent must              
          establish by this level of proof both (1) that there was an                 
          underpayment of tax for each taxable year at issue and (2) that             
          at least some portion of such underpayment was due to fraud.                
          DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd. 959 F.2d 16           
          (2d Cir. 1992); Petzoldt v. Commissioner, 92 T.C. 661, 699                  
          (1989).                                                                     
               A.  Underpayments of Tax                                               
               Where allegations of fraud are intertwined with unreported             
          and indirectly reconstructed income, the Commissioner may satisfy           






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