- 23 - 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.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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