- 32 - statement from respondent's brief: “It is presumed that if petitioner could have used * * * funds [of Pieces of Eight] for nondeductible personal expenditures then at least that amount of income must have been earned.” Such a presumption, however, is insufficient to carry respondent’s burden of proof.14 The fact that expenditures were made, without evidence supporting the inference that they were made from currently taxable income, rather than from resources on hand at the beginning of the period in question, is not sufficient to establish, by clear and convincing evidence, that underpayments of tax occurred in each of 1988 and 1989. We therefore do not sustain respondent’s determination with respect to the addition to tax for fraud for 1988 and the addition to tax for fraudulent failure to file for 1989. Fraudulent Intent Because we have found that respondent has carried the burden of proving that an underpayment of tax occurred only with respect to 1987, we shall consider the second prong of the fraud test 14 Elsewhere on brief, respondent argues that “petitioner cannot reasonably dispute that the amounts of income he failed to report in each of the three consecutive years before the Court was substantial” to support the determination that petitioner is liable for the addition to tax for fraud. If respondent means to suggest that petitioner should be held liable for the addition to tax for fraud because he cannot show error in respondent’s determinations, we must point out that respondent bears the burden of proof on this issue, and a finding of fraud cannot be based upon petitioner’s failure to show error in respondent’s determinations. Parks v. Commissioner, 94 T.C. 654, 660-661 (1990).Page: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Next
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