Robert D. Grossman, Jr. - Page 139

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          section 6501(c)(1),22 which provides that if a false or                     
          fraudulent return is filed with the intent to evade tax, then the           
          tax may be assessed at any time.23  Petitioner contends that                
          respondent has failed to prove fraud by clear and convincing                
          evidence for 1983, 1984, and 1985 and thus, assessment and                  
          collection of tax for 1983, 1984, and 1985 are barred by the                
          statute of limitations.                                                     
               We agree with respondent as to 1985, and with petitioner as            
          to 1983 and 1984.                                                           
               Respondent has the burden of proving the applicability of              
          the fraud exception to the general period of limitations.                   


               22   SEC. 6501. LIMITATIONS ON ASSESSMENT AND COLLECTION.              
                              *   *   *   *   *   *   *                               
                    (c) Exceptions.--                                                 
                         (1) False return.--In the case of a false or                 
                    fraudulent return with the intent to evade tax, the tax           
                    may be assessed, or a proceeding in court for                     
                    collection of such tax may be begun without assessment,           
                    at any time.                                                      
               23   Proof that either spouse committed fraud on a joint tax           
          return extends the limitations period for both spouses on that              
          tax return, even though only one of the spouses may be liable for           
          the fraud addition to tax.  Hicks Co. v Commissioner, 56 T.C.               
          982, 1030 (1971), affd. 470 F.2d 87 (1st. Cir. 1972); Stone v.              
          Commissioner, 56 T.C. 213, 227-228 (1971).  In the joint notices            
          of deficiency, respondent had determined that both Betsy and                
          petitioner had committed fraud for 1983 through 1987.  However,             
          in the instant cases respondent’s counsel made it plain at trial            
          that respondent is relying, as to the statute of limitations,               
          solely on the fraud determined against petitioner, and not on any           
          contention that Betsy committed fraud.                                      





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