Bruce P. Cadwell - Page 6

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          genuine issue as to any material fact and that a decision may be            
          rendered as a matter of law."  Rule 121(b); Sundstrand Corp. v.             
          Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th               
          Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);                
          Naftel v. Commissioner, 85 T.C. 527, 529 (1985).  The moving                
          party bears the burden of proving that there is no genuine issue            
          of material fact, and factual inferences will be read in a manner           
          most favorable to the party opposing summary judgment.  Dahlstrom           
          v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.                        
          Commissioner, 79 T.C. 340, 344 (1982).                                      
               Section 6653(b) provides for the imposition of an addition             
          to tax if any part of any underpayment of tax required to be                
          shown on the return is due to fraud.  The burden of proof with              
          respect to fraud is upon the Commissioner to prove, by clear and            
          convincing evidence, that some part of the underpayment of tax              
          was due to fraud with an intent to evade tax.  Sec. 7454(a); Rule           
          142(b); Imburgia v. Commissioner, 22 T.C. 1002 (1954).  That                
          burden can be satisfied by the Commissioner by undenied facts               
          deemed admitted under Rule 37(c).  Doncaster v. Commissioner, 77            
          T.C. 334 (1981); Marcus v. Commissioner, 70 T.C. 562 (1978),                
          affd. without published opinion 621 F.2d 439 (5th Cir. 1980);               
          Gilday v. Commissioner, 62 T.C. 260 (1974).  Furthermore, if the            
          fraud allegations are deemed admitted by motion under Rule 37(c),           
          the Commissioner may move for judgment on the fraud issue on the            
          basis of the facts deemed admitted pursuant to Rule 120 (Judgment           




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