Ted W. Gleave - Page 32

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          this burden for a year, respondent must prove two elements, as              
          follows: (1) That petitioner has an underpayment of tax for that            
          year, and (2) that some part of that underpayment is due to                 
          fraud.  Sec. 7454(a);12 Rule 142(b); e.g., Carter v. Campbell,              


               11(...continued)                                                       
                         attributable to fraud, and                                   
                              (B) for the period beginning on the last day            
                         prescribed by law for payment of such underpayment           
                         (determined without regard to any extension) and             
                         ending on the date of the assessment of the tax              
                         (or, if earlier, the date of the payment of the              
                         tax).                                                        
               For 1980 and 1981, the fraud addition to tax is provided for           
          in sec. 6653(b), the first sentence of which is the same as the             
          above-quoted sec. 6653(b)(1).                                               
               Par. (2) was added by sec. 325(a) of the Tax Equity and                
          Fiscal Responsibility Act of 1982, Pub. L. 97-248, 96 Stat. 324,            
          616, and was effective for taxes the payment of which (determined           
          without regard to any extension) is due after Sept. 3, 1982.  In            
          the instant case, par. (2) is applicable to the additions to tax            
          determined against petitioners for 1982.                                    
               The later amendments of this provision by sec. 1503 of the             
          Tax Reform Act of 1986 (TRA 86--Pub. L. 99-514, 100 Stat. 2085,             
          2742), by sec. 1015(b)(2)(B) of the Technical and Miscellaneous             
          Revenue Act of 1988 (Pub. L. 100-647, 102 Stat. 3342, 3569), and            
          by sec. 7721(a) of the Omnibus Budget Reconciliation Act of 1989            
          (OBRA 89--Pub. L. 101-239, 103 Stat. 2106, 2395) do not affect              
          the instant case.                                                           
               As a result of OBRA 89, the revised fraud addition to tax              
          now appears in secs. 6663 and 6651(f).                                      


               12   SEC. 7454. BURDEN OF PROOF IN FRAUD, FOUNDATION                   
                    MANAGER, AND TRANSFEREE CASES.                                    
                    (a) Fraud.--In any proceeding involving the issue                 
               whether the petitioner has been guilty of fraud with intent            
               to evade tax, the burden of proof in respect of such issue             
                                                             (continued...)           




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