Ferdinand Decaprio and Claire Decaprio - Page 12

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          wise to proceed under Rule 123(a).5  Consequently, even though              
          petitioner initially denied fraud in the reply, it is within our            
          discretion under Rule 123(a) to enter a default decision sustain-           
          ing all deficiencies in, and additions to, tax remaining in this            
          case, including the additions to tax under section 6653(b) for              
          1983, 1984, and 1985, without requiring respondent to prove fraud           
          affirmatively.6  Gordon v. Commissioner, 73 T.C. 736, 740-742               
          (1980).  It would be a waste of the Court's time and resources to           
          require affirmative proof of fraud in the present case where                
          petitioner has unequivocally indicated that he will no longer               
          contest, inter alia, the additions to tax under section 6653(b).            
          Id. at 742.                                                                 
               Under the particular circumstances presented here, we find             
          that petitioner has not only failed to carry his burden of proof            
          as to all issues remaining in this case on which he has the                 



          5  Rule 123(a) provides in pertinent part that a party may be               
          held in default if such party "has failed to plead or otherwise             
          proceed as provided by these Rules".                                        
          6  We note that we find no merit in petitioner's allegation in              
          the reply that the additions to tax for fraud are invalid under             
          the double jeopardy clause of the Fifth Amendment.  The addition            
          to tax for fraud is a civil, and not a criminal, provision that             
          was enacted "primarily as a safeguard for the protection of the             
          revenue and to reimburse the Government for the heavy expense of            
          investigation and the loss resulting from the taxpayer's fraud."            
          Helvering v. Mitchell, 303 U.S. 391, 401 (1938).  It is well                
          established that a conviction for tax fraud under sec. 7201 and             
          the imposition of the addition to tax for fraud under sec.                  
          6653(b) do not place a taxpayer in double jeopardy within the               
          meaning of the Fifth Amendment.  See Helvering v. Mitchell, supra           
          at 399-404; United States v. Alt, 83 F.3d 779, 781-784 (6th Cir.            
          1996); Ianniello v. Commissioner, 98 T.C. 165, 176-185 (1992).              



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