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those determinations.
We now turn to the fraud issue. We deal separately with
1983, the year for which petitioner was convicted of, inter alia,
criminal tax evasion under section 7201. We conclude that that
conviction collaterally estops petitioner from denying that the
underpayment for 1983 is due to fraud for purposes of section
6653(b). E.g., DiLeo v. Commissioner, 96 T.C. 858, 885-886
(1991), affd. 959 F.2d 16 (2d Cir. 1992).
With respect to each of the years 1984 through 1988,
respondent must prove by clear and convincing evidence that an
underpayment exists and fraudulent intent. Rule 142(b); sec.
7454(a). Petitioner filed delinquent returns for each of those
years in which he showed that he received wages. On the record
before us, we find that an underpayment exists for each of the
years 1984 through 1988.
In order to prove fraudulent intent, the U.S. Court of
Appeals for the Tenth Circuit (Court of Appeals), to which an
appeal in this case would ordinarily lie, has held that
a taxpayer is not liable for the civil fraud penalties
unless he commits some affirmative act of concealment
or misrepresentation. Mere failure to file, whether
disclosed or not, does not justify the fraud penalties
even when the taxpayer knows that taxes are due. [Zell
v. Commissioner, 763 F.2d 1139, 1146 (10th Cir. 1985),
affg. T.C. Memo. 1984-152.]
Applying the foregoing proof requirements that the Court of
Appeals imposes on respondent, see Golsen v. Commissioner, 54
T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), respondent
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