Donald J. and Lillian Joy Miravalle - Page 15

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          Korecky v. Commissioner, 781 F.2d 1566, 1568 (11th Cir. 1986),              
          affg. T.C. Memo. 1985-63.  For the addition to tax under section            
          6653(b)(1) to apply, respondent must establish for each year that           
          (1) the taxpayer has underpaid the taxes and (2) some part of the           
          underpayment is due to fraud.  Sec. 6653(b)(1); DiLeo v.                    
          Commissioner, 96 T.C. at 873.  For the addition to tax under                
          section 6653(b)(2) to apply, respondent must establish the                  
          portion of the underpayment attributable to fraud.  Sec.                    
          6653(b)(2); DiLeo v. Commissioner, supra at 873.                            
               To prove an underpayment of tax, respondent cannot rely on             
          the taxpayer's failure to satisfy his or her burden of proof as             
          to the underlying deficiency.  Parks v. Commissioner, 94 T.C.               
          654, 661 (1990).  When allegations of fraud are intertwined with            
          unreported and indirectly reconstructed income, respondent can              
          prove an underpayment by (1) proving a likely source of the                 
          unreported income or (2) where the taxpayer alleges a nontaxable            
          source, by disproving the alleged nontaxable source.  DiLeo v.              
          Commissioner, supra at 873-874.                                             
               Based on the facts herein, respondent has shown that                   
          petitioners were engaged in a business activity during the years            
          at issue and failed to report their gross receipts.  Unreported             
          receipts alone, however, do not establish an underpayment of tax,           
          unless such unreported receipts are greater than the cost of                
          goods sold plus deductible expenses.  See Franklin v.                       
          Commissioner, T.C. Memo. 1993-184.  Petitioners have contended              




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