- 11 - others to commit the crime of aiding and assisting in the preparation of false returns of others; the conviction under section 7206(1) might have been with respect to unreported income from movie deals, which respondent has conceded petitioner did not have; further, the convictions under section 7206(1) and (2) could be based on nothing more than petitioner's participation in the conspiracy, under Pinkerton v. United States, 328 U.S. 640, 645-647 (1946). Respondent determined that petitioner was liable for an addition to tax for fraud for 1975 under section 6653(b). This section imposes an addition to tax equal to 50 percent of any underpayment in tax if any part of the underpayment is due to fraud. To establish this, respondent must show both: (1) That the taxpayer has underpaid his taxes for the year in question (existence of underpayment), and (2) that some part of the underpayment is due to fraud (fraudulent intent, intent to evade tax). DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd. on other issues 959 F.2d 16 (2d Cir. 1992); Parks v. Commissioner, 94 T.C. 654, 660-661 (1990); Truesdell v. Commissioner, 89 T.C. 1280, 1301 (1987); Hebrank v. Commissioner, 81 T.C. 640, 642 (1983). Respondent bears the burden of proving fraud and must carry this burden for each element of fraud by clear and convincing evidence. Sec. 7454(a); Rule 142(b); DiLeo v.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011