Ray E. Mason - Page 5

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                                       OPINION                                        
               Individuals whose gross income exceeds certain levels for a            
          taxable year are required to file an income tax return.  Sec.               
          6012(a).  If an individual fails to file an income tax return,              
          the Commissioner may impose an addition to tax of up to 5 percent           
          per month of the amount required to be shown, up to a maximum of            
          25 percent.  Sec. 6651(a)(1).  If the failure to file is                    
          fraudulent, the addition to tax is 15 percent per month of the              
          amount required to be shown up to a maximum of 75 percent.  Sec.            
          6651(f).                                                                    
               Petitioner stipulated that he did not file a timely income             
          tax return for 1995.  We must determine whether his failure to              
          file timely was fraudulent within the meaning of section 6651(f).           
          In determining whether a taxpayer’s failure to file is                      
          fraudulent, we consider the same elements that are considered in            
          imposing the fraud penalty under section 6663.  Clayton v.                  
          Commissioner, 102 T.C. 632, 653 (1994).  Fraud is an intentional            
          wrongdoing designed to evade tax known or believed to be owing.             
          Edelson v. Commissioner, 829 F.2d 828, 833 (9th Cir. 1987), affg.           
          T.C. Memo. 1986-223; Bradford v. Commissioner, 796 F.2d 303, 307            
          (9th Cir. 1986), affg. T.C. Memo. 1984-601.  Respondent has the             
          burden of proving fraud by clear and convincing evidence.  Sec.             
          7454(a); Rule 142(b); Clayton v. Commissioner, supra.                       








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