- 145 - evidence, that petitioner has an underpayment of tax for that year, and that some part of that underpayment is due to fraud. If respondent establishes that petitioner has an underpayment of tax some part of which is due to fraud, then section 6653(b)(2) shifts the burden of proof to petitioner to establish what portion of the underpayment is not attributable to fraud. Our conclusion as to the statute of limitations issue results in our concluding that respondent has carried respondent’s burden of proof. 35(...continued) extension) and ending on the date of the assessment of the tax or, if earlier, the date of the payment of the tax. (2) Determination of portion attributable to fraud.--If the Secretary establishes that any portion of an underpayment is attributable to fraud, the entire underpayment shall be treated as attributable to fraud, except with respect to any portion of the underpayment which the taxpayer establishes is not attributable to fraud. These provisions were added by sec. 1503(a) of TRA 86, 100 Stat. 2742, and apply to tax returns the due date of which is after Dec. 31, 1986. The later amendments of these provisions by sec. 1015(b)(2) of the Technical and Miscellaneous Revenue Act of 1988 (TAMRA 88)(Pub. L. 100-647, 102 Stat. 3342, 3569) and by sec. 7721(a) of the Omnibus Budget Reconciliation Act of 1989 (OBRA 89--Pub. L. 101-239, 103 Stat. 2106, 2395) do not affect the instant cases. As the result of OBRA 89, the revised negligence addition to tax appears in sec. 6662, and the revised fraud addition to tax now appears in secs. 6663 and 6651(f).Page: Previous 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 Next
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