John R. Toney - Page 13

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          Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587 (quoting Fed.             
          R. Civ. P. 56(e)).  “There is no issue for trial unless there is            
          sufficient evidence favoring the nonmoving party for a                      
          [factfinder] to return a verdict for that party.”  Anderson v.              
          Liberty Lobby, Inc., 477 U.S. at 248.                                       
               Whether a portion of the underpayment is not attributable to           
          fraud is a genuine issue of material fact in fraud cases.  When             
          respondent has established that a portion of the underpayment is            
          attributable to fraud, petitioner must set forth specific facts             
          showing there is a genuine dispute as to the portion of the                 
          underpayment not attributable to fraud.  Otherwise, by operation            
          of law pursuant to section 6653(b), the entire underpayment is              
          attributed to fraud.                                                        
               Petitioner has failed to sustain his burden.  Petitioner has           
          presented no specific facts indicating that a portion of the                
          underpayment is not attributable to fraud.  Petitioner presented            
          no documents or testimony concerning nonfraudulent actions taken            
          as to any portion of the underpayment.  Petitioner offered no               
          testimony under oath at the oral argument or affidavit concerning           
          the portion of the underpayment not attributable to fraud.  The             
          exhibits attached to petitioner's Response Opposing Motion for              
          Summary Judgment likewise fail to raise an issue of fact as to              
          the portion of the underpayment which is not attributable to                
          fraud.                                                                      






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