William C. Beretta - Page 21

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            section 6653(b)(1) for 19874 and 1988, and section 6663 for 1989                            
            and 1990.  These sections impose an addition to tax or penalty                              
            equal to 75 percent of the portion of the underpayment which is                             
            attributable to fraud.  However, if respondent proves that any                              
            portion of the underpayment is attributable to fraud, the entire                            
            underpayment shall be treated as attributable to fraud, unless                              
            petitioner can establish by a preponderance of the evidence that                            
            a portion is not attributable to fraud.  Secs. 6653(b)(2),                                  
            6663(b).                                                                                    
                  Fraud is defined as an intentional wrongdoing designed to                             
            evade tax believed to be owing.  Edelson v. Commissioner, 829                               
            F.2d 828, 833 (9th Cir. 1987), affg. T.C. Memo. 1986-223.                                   
            Respondent has the burden of proving fraud by clear and                                     
            convincing evidence.  Rule 142(b).  To satisfy this burden,                                 
            respondent must prove that petitioner intended to evade taxes                               
            known to be owing by conduct intended to conceal, mislead, or                               
            otherwise prevent the collection of taxes.  Parks v.                                        
            Commissioner, 94 T.C. 654, 661 (1990).                                                      
                  The existence of fraud is a question of fact to be resolved                           
            upon consideration of the entire record.  DiLeo v. Commissioner,                            
            96 T.C. 858, 874 (1991), affd. 959 F.2d 16 (2d Cir. 1992).  Fraud                           


                  4 In addition, with respect to the taxable year 1987,                                 
            respondent has determined an addition to tax pursuant to sec.                               
            6653(b)(1)(B) in an amount equal to 50 percent of the interest                              
            due on the underpayment attributable to fraud.                                              




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