Eric Wynn - Page 13

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          sensitive addition of section 6653(b)(2) is imposed only on the             
          portion of the deficiency shown by respondent to be due to fraud.           
          Therefore, petitioner is collaterally estopped from denying the             
          interest-sensitive fraud addition only with respect to the                  
          portion of the 1983 deficiency attributable to items that he                
          admitted in his guilty plea in the criminal trial and conceded in           
          this case.  For any remaining portion of the deficiency,                    
          respondent must prove:  (1) That there is an underpayment of tax            
          and (2) what part of the underpayment is due to fraud.  Sec.                
          7454(a); Rule 142(b); DiLeo v. Commissioner, supra at 873; Stone            
          v. Commissioner, supra.4                                                    
               In order to prove an underpayment, the Commissioner cannot             
          rely on the presumption of correctness of the statutory notice              
          for deficiency purposes.  See DiLeo v. Commissioner, supra at               
          873.  Fraud is never presumed; even if a taxpayer's testimony is            
          incredible, we may still be left with no more than a suspicion of           
          fraud.  Rinehart v. Commissioner, T.C. Memo. 1983-184.                      
          Suspicion, even a strong suspicion, of fraud will not sustain the           
          Commissioner's determination.5  See Drieborg v. Commissioner, 225           

          4  The Court of Appeals for the Third Circuit has stated that               
          evidence must be so "'clear, direct, weighty and convincing as to           
          enable the * * * [fact finder] to come to a clear conviction,               
          without hesitancy, of the truth of the precise facts in issue'".            
          United States Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306, 309            
          (3d Cir. 1985), quoting In re Estate of Fickert, 337 A.2d 592,              
          594 (Pa. 1975).                                                             
          5  See Balter, Tax Fraud and Evasion, par. 8.03[9][a], at 8-                
          71 (1983 & 1994 Supp.).                                                     




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