Robert B. Kemp, Jr. - Page 5

                                        - 5 -                                         
          intentionally filed false 1991 and 1992 returns and that an                 
          underpayment exists for these years.  Bradford v. Commissioner,             
          796 F.2d 303, 307-308 (9th Cir. 1986), affg. T.C. Memo. 1984-601;           
          Considine v. United States, 683 F.2d 1285, 1287 (9th Cir. 1982);            
          Wright v. Commissioner, 84 T.C. 636, 643-644 (1985).  Respondent            
          cannot rely solely on petitioner’s conviction to sustain his                
          burden of establishing fraud but must clearly and convincingly              
          prove that petitioner intended to evade tax.  Sec. 7454(a); Rule            
          142(b); Parks v. Commissioner, 94 T.C. 654, 660-661 (1990);                 
          Wright v. Commissioner, supra at 643-644.  This burden is met               
          where respondent proves conduct intended to conceal, mislead, or            
          otherwise prevent the collection of tax.  Parks v. Commissioner,            
          supra at 661.  Fraud is not to be imputed or presumed but rather            
          must be established by some independent evidence.  Beaver v.                
          Commissioner, 55 T.C. 85, 92 (1970).                                        
               Respondent has failed to meet his burden.  Respondent did              
          not present any witnesses or introduce sufficient evidence to               
          establish that any portion of the underreported income is                   
          attributable to fraud.  See sec. 6663(b); Petzoldt v.                       
          Commissioner, 92 T.C. 661, 698-699 (1989).  Instead, respondent             
          focused on petitioner’s criminal indictment for bank fraud, for             
          which petitioner had been acquitted, and income petitioner                  









Page:  Previous  1  2  3  4  5  6  7  Next

Last modified: May 25, 2011