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1. Underpayment
The first element requires the Commissioner to establish the
existence of some underpayment of tax for each of the years in
issue. Section 6653(c) defines underpayment as having in general
the same meaning as "deficiency;" i.e., to mean the amount by
which the tax imposed exceeds the amount of tax shown by the
taxpayer on his return. Sec. 6211. To prove an underpayment,
the Commissioner cannot satisfy her burden by relying solely on
the taxpayer's failure to prove error in the determination of the
deficiencies. Otsuki v. Commissioner, 53 T.C. 96, 106 (1969).
Respondent’s case rests heavily on the testimony of Toll and
Suval during the trial in this proceeding. As petitioner states
in his brief:
Mr. Toll claims to have paid * * * [petitioner] a
$105,000 bribe to subvert the 1977 and 1978 audits; Mr.
Suval says he paid * * * [petitioner] $7,500 for having
introduced him to Mr. Toll. * * * If * * * [Toll and
Suval’s] believed testimony is clear and convincing,
then * * * [petitioner] owes taxes for the years at bar
* * *.
We have found the testimony of Toll, in particular, and Suval to
be trustworthy and convincing. We acknowledge that Toll and
Suval pleaded guilty to various crimes in relation to the bribes.
We do not find that either of them had a motive that would prompt
false testimony in this case. We acknowledge that, at times,
Toll’s testimony was not in complete accord with Suval's.
However, the events of this case occurred over a decade ago. We
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