Haralampos Katerelos and Irene Katerelos - Page 35

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                  For 1987, section 6653(b)(1)(A) imposes an addition to tax                              
            equal to 75 percent of the portion of an underpayment that is                                 
            attributable to fraud and section 6653(b)(1)(B) imposes an                                    
            addition to tax equal to 50 percent of the interest due on that                               
            portion of the underpayment.  Section 6653(b)(1) for 1988 and                                 
            section 6663(a) for 1989 and 1990 impose an addition to tax and a                             
            penalty, respectively, equal to 75 percent of the portion of an                               
            underpayment that is attributable to fraud.  For purposes of the                              
            foregoing provisions, section 6653(b)(2) for 1987 and 1988 and                                
            section 6663(b) for 1989 and 1990 provide that if respondent                                  
            establishes that any portion of an underpayment is due to fraud,                              
            the entire underpayment is treated as attributable to fraud,                                  
            unless the taxpayer proves that some portion of the underpayment                              
            is not due to fraud.                                                                          
                  In order for the additions to tax and penalties for fraud to                            
            apply, respondent must prove by clear and convincing evidence                                 
            that an underpayment exists and that some portion of such under-                              

            29(...continued)                                                                              
            Katerelos is not liable for any additions to tax or penalties for                             
            fraud for any of the years 1987 through 1990, respondent has not                              
            carried her burden of proving fraud.  That respondent concedes                                
            that Ms. Katerelos is not liable for fraud does not relieve Mr.                               
            Katerelos from the additions to tax or penalties for fraud.  That                             
            petitioners filed a joint return is not a defense to the imposi-                              
            tion of such additions and penalties against only one spouse.                                 
            See, e.g., Otsuki v. Commissioner, 53 T.C. 96, 112-113 (1969).                                
            Even the case cited by petitioners as authority for the proposi-                              
            tion that fraud cannot be imputed from one spouse to another                                  
            imposed the penalty for fraud against one spouse even though                                  
            respondent failed to prove fraud against the other spouse.  See                               
            Fry v. Commissioner, T.C. Memo. 1991-51, affd. without published                              
            opinion 8 F.3d 26 (9th Cir. 1993).                                                            


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