Eloise Gaddy Joens - Page 23

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            underpayment.  Sec. 6653(b).  In addition, there is added to the                          
            tax 50 percent of the interest due on the portion of the                                  
            underpayment attributable to fraud.  Sec. 6653(b)(2).  In the                             
            case of joint returns, assessing the addition to tax for fraud                            
            against both taxpayers requires participation of both the husband                         
            and wife in the fraud.  Sec. 6653(b)(4).                                                  
                  The Commissioner has the burden of proving fraud by clear                           
            and convincing evidence.  Sec. 7454(a); Rule 142(b); Parks v.                             
            Commissioner, 94 T.C. 654, 660 (1990).  First, the Commissioner                           
            must prove that there is an underpayment.  Parks v. Commissioner,                         
            supra.  The Commissioner may not rely on the taxpayer's failure                           
            to carry the burden of proving the underlying deficiency.  Id. at                         
            660-661.  Second, the Commissioner must show that the taxpayer                            
            intended to evade taxes by conduct intended to conceal, mislead,                          
            or otherwise prevent tax collection.  Stoltzfus v. United States,                         
            398 F.2d 1002, 1004 (3d Cir. 1968); Parks v. Commissioner, supra                          
            at 661; Rowlee v. Commissioner, 80 T.C. 1111, 1123 (1983).                                
                  Underpayment                                                                        
                  The Commissioner may prove that the taxpayer underpaid tax                          
            by proving that the taxpayer had a likely source of the                                   
            unreported income, Holland v. United States, 348 U.S. 121 (1954);                         
            Parks v. Commissioner, supra; Nicholas v. Commissioner, 70 T.C.                           
            1057 (1978), or, where the taxpayer alleges a nontaxable source,                          
            by disproving the alleged nontaxable source; United States v.                             





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