S. Paul and Patricia J. Dubose - Page 7

                                        - 7 -                                         

          issues will be decided against petitioner.  Rules 123(a) and (b),           
          142(a), 149.                                                                
               Respondent, however, bears the burden of proving fraud by              
          clear and convincing evidence.  Sec. 7454(a); Rule 142(b).  In              
          this regard, respondent presented evidence that petitioner had              
          unreported income for each of the years in issue.  In the course            
          of presenting that evidence, respondent also satisfied the burden           
          that is sometimes associated with determinations of unreported              
          income.  See Portillo v. Commissioner, 932 F.2d 1128, 1133 (5th             
          Cir. 1991).                                                                 
               The addition to tax for fraud is a civil sanction intended             
          to safeguard the revenue and to reimburse the Government for the            
          heavy expense of investigation and for the loss resulting from a            
          taxpayer’s fraud.  Helvering v. Mitchell, 303 U.S. 391, 401                 
          (1938).  Respondent has the burden of proving, by clear and                 
          convincing evidence, an underpayment for each year and that some            
          part of the underpayment was due to fraud.  If respondent                   
          establishes that any portion of the underpayment is attributable            
          to fraud, the entire underpayment is treated as attributable to             
          fraud and subjected to a 75-percent addition to tax or penalty,             
          unless the taxpayer establishes that some part of the                       
          underpayment is not attributable to fraud.  See sec. 6653(b)(2)             
          for 1986, 1987, and 1988, and sec. 6663(b) for 1989 and 1990.               







Page:  Previous  1  2  3  4  5  6  7  8  9  10  Next

Last modified: May 25, 2011