Eric Wynn - Page 11

                                        - 11 -                                        
               Respondent has the burden of proof, by clear and convincing            
          evidence, on the fraud issue; petitioner has the burden of proof,           
          by a preponderance of the evidence, on the deficiencies and non-            
          fraud additions.  The sparse record of events described in our              
          findings of fact does not compel a holding in favor of either               
          party's contentions.  Cf. Ishijima v. Commissioner, T.C. Memo.              
          1994-353.  For the reasons described below, we find that                    
          respondent has not proven fraud by clear and convincing evidence            
          beyond what necessarily flows from petitioner's guilty plea in              
          the criminal case and his concessions in the case at hand with              
          respect to the year 1983.  Because petitioner offered no proof,             
          he has not borne his burdens of disproving the deficiencies and             
          the nonfraud additions.                                                     
          Issue 1:  1983--Section 6653(b)(1) and (2)                                  
               A. Section 6653(b)(1).  Section 6653(b)(1) imposes an                  
          addition to tax of 50 percent of the underpayment of tax required           
          to be shown on the return if any part of the underpayment is due            
          to fraud.  Respondent bears the burden of proving by clear and              
          convincing evidence that (1) petitioner has an underpayment for             
          the taxable year, and (2) that some part of the underpayment is             
          due to fraud.  Sec. 7454(a); Rule 142(b); DiLeo v. Commissioner,            
          96 T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Stone            
          v. Commissioner, 56 T.C. 213, 220 (1971).                                   
               Conviction of criminal tax evasion under section 7201                  
          collaterally estops a taxpayer from denying that the fraud                  




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011