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general, a taxpayer's negligence, whether slight or gross, is not
enough to prove fraud. Kellett v. Commissioner, 5 T.C. 608, 616
(1945).
Respondent maintains that petitioner's failure to file
timely income tax returns was part of a pattern of fraud.
Although a taxpayer's failure to file is prima facie evidence of
negligence for purposes of section 6653(a), see Emmons v.
Commissioner, 92 T.C. 342, 350 (1989), affd. 898 F.2d 50 (5th
Cir. 1990), it is insufficient in and of itself to prove fraud.
Rowlee v. Commissioner, supra at 1123.
The record here simply does not show any affirmative acts of
concealment or misrepresentation so as to constitute fraud, such
as filing false information or attempting to mislead respondent.
Zell v. Commissioner, 763 F.2d 1139, 1146 (10th Cir. 1985), affg.
T.C. Memo. 1984-152. For respondent to sustain her position as
to the fraud addition to tax, it is not enough that respondent
can show the taxpayer to be devious. See Kreps v. Commissioner,
351 F.2d 1, 7 (2d Cir. 1965), affg. 42 T.C. 660 (1964); Shaw v.
Commissioner, 27 T.C. 561, 569-570 (1956), affd. 252 F.2d 681
(6th Cir. 1958); Gano v. Commissioner, 19 B.T.A. 518, 532-533
(1930). The evidence must be clear and convincing. In the
instant case, we find that the evidence falls short of being
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