John Van Heemst - Page 32

                                       - 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

Last modified: May 25, 2011