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there is some underpayment and that some part of it is
attributable to fraud. E.g., Lee v. United States, 466 F.2d 11,
16-17 (5th Cir. 1972); Plunkett v. Commissioner, 465 F.2d 299,
303 (7th Cir. 1972), affg. T.C. Memo. 1970-274. In carrying this
burden, respondent may not rely on petitioner’s failure to meet
his burden of proving error in respondent’s determinations as to
the deficiencies. E.g., Petzoldt v. Commissioner, 92 T.C. 661,
700 (1989); Habersham-Bey v. Commissioner, 78 T.C. 304, 312
(1982), and cases cited therein.
Where fraud is determined for each of several years,
respondent’s burden applies separately for each of the years.
Drieborg v. Commissioner, 225 F.2d 216, 219-220 (6th Cir. 1955),
affg. in part and revg. in part a Memorandum Opinion of this
Court dated Feb. 24, 1954; Estate of Stein v. Commissioner, 25
T.C. 940, 959-963 (1956), affd. sub nom. Levine v. Commissioner,
250 F.2d 798 (2d Cir. 1958). A mere understatement of income
does not establish fraud. However, a pattern of consistent
underreporting of income for a number of years is strong evidence
of fraud. Estate of Mazzoni v. Commissioner, 451 F.2d 197, 202
(3d Cir. 1971), affg. T.C. Memos. 1970-144 and 1970-37; Adler v.
Commissioner, 422 F.2d 63, 66 (6th Cir. 1970), affg. T.C. Memo.
1968-100; Otsuki v. Commissioner, 53 T.C. at 108.
The issue of fraud poses a factual question that is to be
decided on an examination of all the evidence in the record.
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