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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).
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