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The case is before the Court on petitioner's motion for partial
summary judgment filed March 10, 1995, pursuant to Rule 121.
Respondent determined deficiencies in petitioner's Federal
income tax and additions to tax as follows:
Additions to Tax
Year Deficiency Sec. 6653(b) Sec. 6661
1980 $25,265 $16,983 --
1981 34,220 25,018 --
1982 21,196 10,598 $5,299
The statutory notice in this case was issued on July 1,
1992. Petitioner's motion is directed only to the deficiency and
additions to tax determined under the notice for the year 1982.
The "normal" 3-year statute of limitations under section 6501(a)
has expired for taxable year 1982. Based upon the allegations in
respondent's amended answer, the deficiency and additions to tax
determined by respondent for the year 1982 may only be assessed
if the "fraud" exception of section 6501(c)(1) applies. In his
motion, petitioner alleges that based upon the affidavits
submitted, the facts stipulated by the parties, and the pleadings
and attachments thereto, respondent as a matter of law cannot
meet her burden of proving fraud, and the Court must enter
summary judgment in favor of petitioner for the year 1982.
For the reasons set out below, we find that there is a
genuine issue of material fact as to whether there is an
understatement of tax due to fraud with respect to petitioner's
tax return for the year 1982.
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