Creed J. Pearson - Page 9




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          to be owing by conduct intended to conceal, mislead, or otherwise           
          prevent the collection of taxes.  Parks v. Commissioner, 94 T.C.            
          654, 661 (1990).  The Commissioner may not simply rely upon the             
          taxpayer's failure to show error in the determinations of the               
          deficiencies.  DiLeo v. Commissioner, 96 T.C. 858, 873 (1991),              
          affd. 959 F.2d 16 (2d Cir. 1992).  Furthermore, the mere failure            
          to report income is not sufficient to establish fraud, Merritt v.           
          Commissioner, 301 F.2d 484, 487 (5th Cir. 1962), affg. T.C. Memo.           
          1959-172, but a pattern of consistent underreporting of income,             
          especially when accompanied by other circumstances showing an               
          intent to conceal, may justify the inference of fraud, Holland v.           
          United States, 348 U.S. 121, 139 (1954); Parks v. Commissioner,             
          supra at 664.  However, where there is no evidence of fraudulent            
          intent, such as falsification, concealment, or deception, the               
          Commissioner has not carried his burden.  Kotmair v.                        
          Commissioner, 86 T.C. 1253, 1260 (1986).                                    
               After considering petitioner’s testimony as a whole, we find           
          that petitioner lacked the requisite fraudulent intent at the               
          times he was required to file returns for 1999 through 2003.  As            
          respondent points out, petitioner failed to file returns for 1999           
          through 2003, did not make estimated tax payments for those                 
          years, and was not particularly cooperative with respondent, and            
          these are “badges of fraud” from which we may infer fraudulent              
          intent.  Bradford v. Commissioner, 796 F.2d 303, 307 (9th Cir.              







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