David Daniel and Annette Daniel - Page 18

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            statutory notice of deficiency, respondent's trial memorandum, or                            
            respondent's brief as to the particular charitable contributions                             
            against which respondent asserts the fraud penalty.                                          
                  Section 6663(b) provides that if respondent establishes that                           
            any part of any underpayment of tax required to be shown on a                                
            return is due to fraud, the entire underpayment shall be treated                             
            as attributable to fraud and subjected to a 75 percent penalty                               
            unless the taxpayer establishes, by the preponderance of the                                 
            evidence, that some part of the underpayment is not attributable                             
            to fraud.  Respondent bears the burden to prove by clear and                                 
            convincing evidence:  (1) An underpayment of tax by the taxpayer;                            
            and (2) that some part of the underpayment is due to fraud.  Sec.                            
            7454(a); Rule 142(b); Clayton v. Commissioner, 102 T.C. 632, 646                             
            (1994); King's Court Mobile Home Park, Inc. v. Commissioner, 98                              
            T.C. 511, 515-516 (1992).  We have already decided that                                      
            petitioners underpaid their Federal income taxes for 1991 and                                
            1992 due to:  (1) Petitioners' concessions regarding the claimed                             
            real estate tax deduction and unreported interest income, and (2)                            
            our holdings that they are not entitled to the entire amounts of                             
            the claimed charitable contribution or any casualty loss                                     
            deductions.  Therefore, we address whether such underpayments are                            
            due to fraud.                                                                                
                  Fraud is established by proving that a taxpayer intended to                            
            evade tax believed to be owing by conduct intended to conceal,                               
            mislead, or otherwise prevent the collection of such tax.                                    




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