Michael J. Fitzpatrick - Page 15

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            attempted to evade and defeat the income tax due and owing by him                              
            for 1981 and 1982, and as a result that he is liable for the                                   
            civil fraud additions to tax under section 6653(b).                                            
                  With respect to additions to tax for fraud, respondent bears                             
            the burden of proof.  Rule 142; sec. 7454(a).  That burden                                     
            requires respondent to establish that there has been an                                        
            underpayment and that some part of the underpayment was due to                                 
            fraud.  DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd. 959                              
            F.2d 16 (2d Cir. 1992).11  Also, for the 1982 tax year,                                        
            respondent must establish the specific portion of the                                          
            underpayment of tax which is attributable to fraud solely for                                  
            purposes of applying the "50 percent of the interest payable"                                  
            provisions of section 6653(b)(2).12  Id. at 873.                                               


            11  See also McNichols v. Commissioner, T.C. Memo. 1993-61 and                                 
            T.C. Memo. 1992-120, affd. 13 F.3d 432 (1st Cir. 1993).                                        
            12 For the 1981 tax year, sec. 6653(b) provided in part:                                       
                         (b) Fraud.--If any part of any underpayment (as                                   
                  defined in subsection (c)) of tax required to be shown                                   
                  on a return is due to fraud, there shall be added to                                     
                  the tax an amount equal to 50 percent of the                                             
                  underpayment. * * *                                                                      
            For the 1982 tax year, sec. 6653(b) became sec. 6653(b)(1) and                                 
            (2), with sec. 6653(b)(1) retaining language identical to that of                              
            prior sec. 6653(b). New sec. 6653(b)(2) provided in part:                                      
                         (2) Additional amount for portion attributable to                                 
                  fraud.-- There shall be added to the tax (in addition                                    
                  to the amount determined under paragraph (1)) an amount                                  
                  equal to 50 percent of the interest payable under                                        
                  section 6601--                                                                           
                                                                            (continued...)                 




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