Charles L. Fields and Barbara S. Fields - Page 32

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               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,               




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