- 35 - 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).Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
Last modified: May 25, 2011