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added to the tax on amount equal to 50 percent of the
underpayment. Thus, for the years 1972 through 1976, respondent
need only prove, by clear and convincing evidence, that some part
of each year's underpayment is due to fraud. If that burden is
met, then the addition to tax is calculated on the entire
underpayment for each year.
Petitioner relies upon, and we are well aware of, comments
that were made by Judge Whitaker at the conclusion of the trial
when the method and schedule for filing briefs were addressed.
Judge Whitaker stated that it was his "recollection of the
testimony, and this is not a decision on my part" that
petitioners' counsel "made a very strong case". With reference
to the fraud issue, the following colloquy occurred:
MS. HERBERT: Your Honor, you know we do still
have the affirmative allegation of fraud for a number
of the years.
THE COURT: I understand that. And if I were you,
I wouldn't waste a whole lot of time on that argument.
I don't think this is a fraud case, frankly.
* * * * * * *
THE COURT: You're perfectly -- obviously, you can
argue it. You should argue it. But point out those
parts of the record which you think support fraud,
because I have some trouble with it. I don't think
this ought to have been a fraud case to start with.
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