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Farmers Feed Co. v. Commissioner, 10 B.T.A. at 1075-1076. This
burden is the same as that which respondent has under section
6653(b). Asphalt Industries, Inc. v. Commissioner, 384 F.2d 229,
232 (3d Cir. 1967), revg. on other grounds 46 T.C. 622 (1966);
Botwinik Brothers of Mass., Inc. v. Commissioner, 39 T.C. 988,
996 (1963).
To carry this burden for a year, respondent must prove two
elements, as follows: (1) That petitioner has an underpayment of
tax for that year, and (2) that some part of that underpayment is
due to fraud. Sec. 7454(a);24 Rule 142(b); e.g., Carter v.
Campbell, 264 F.2d 930, 936 (5th Cir. 1959); Stone v.
Commissioner, 56 T.C. 213, 220 (1971); Otsuki v. Commissioner, 53
T.C. 96, 105, 114 (1969). Each of these elements must be proven
by clear and convincing evidence. DiLeo v. Commissioner, 96 T.C.
858, 873 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Parks v.
Commissioner, 94 T.C. 654, 663-664 (1990); Hebrank v.
Commissioner, 81 T.C. 640, 642 (1983).
For this purpose, respondent need not prove the precise
amount of the underpayment resulting from fraud, but only that
24 SEC. 7454. BURDEN OF PROOF IN FRAUD, FOUNDATION
MANAGER, AND
TRANSFEREE CASES.
(a) Fraud.--In any proceeding involving the issue
whether the petitioner has been guilty of fraud with intent
to evade tax, the burden of proof in respect of such issue
shall be upon the Secretary.
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