- 32 - a. Underpayments The mere fact that we have sustained respondent's deficiency determination does not mean that petitioner underpaid his taxes for purposes of the additions to tax for fraud. Where, as here, we have sustained respondent's determination of a deficiency mainly by virtue of petitioners' failure to carry their burden of proof, we will not allow respondent to rely merely on that failure to sustain her burden of proving fraud. We will not bootstrap a finding of fraud upon a taxpayer's failure to disprove the Commissioner's deficiency determination. Parks v. Commissioner, supra at 660-661. We have carefully reviewed the record. Following our review, we conclude that respondent has clearly and convincingly proven that petitioner underpaid his taxes for each year in issue. See sec. 6653(c)(1) (an "underpayment" generally is the same as a "deficiency" under sec. 6211). The record clearly convinces us that petitioner had gross income that was not reported on his 1980 through 1982 tax returns. b. Fraudulent Intent To establish fraud under section 6653(b) (for 1980 and 1981) and section 6653(b)(1) (for 1982), respondent must clearly and convincingly prove that petitioner meant to evade the payment of taxes. Douge v. Commissioner, 899 F.2d 164, 168 (2d Cir. 1990); Kahr v. Commissioner, 414 F.2d 621 (2d Cir. 1969), affg. in part and revg. in part 48 T.C. 929 (1967); Rowlee v. Commissioner,Page: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Next
Last modified: May 25, 2011