- 19 - We have previously indicated that Hamalee is not entitled to deduct a theft loss in 1989, and we see no purpose that would be served by repeating our discussion here. We hold that Hamalee has not substantiated the claimed theft loss in 1989. The same is true with respect to the claimed cash expenditures. Suffice it to say, once again, that petitioners have not proven that Hamalee is entitled to any of them. We hold that the Lees may not carryback any of the purported 1989 NOL. 5. Additions to Tax For Fraud Turning to respondent's allegations of fraud, respondent must meet her burden of proving fraud through affirmative evidence because fraud is never imputed or presumed. Beaver v. Commissioner, 55 T.C. 85, 92 (1970). Whether fraud exists in a given situation is a factual determination that must be made after reviewing the particular facts and circumstances of the case. DiLeo v. Commissioner, 96 T.C. 858, 874 (1991), affd. 959 F.2d 16 (2d Cir. 1992). Respondent must prove both prongs of the often-cited two-prong test for fraud (i.e., whether petitioners underpaid tax in the relevant year, and whether some part of the underpayment was due to fraud), in order to sustain her allegations under: (1) Section 6653(b)(1) for petitioners'Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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