Harvey M. Pert, Transferee - Page 30

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          determined a deficiency in tax or additions to tax, or otherwise            
          assessed tax.  Respondent issued the notice of deficiency to Mr.            
          Riffe's estate, including the addition to tax for fraud on                  
          November 23, 1992.  Petitioners contend that the fraud penalty              
          did not arise before the transfers occurred from March 19, 1991             
          to October 17, 1992, when the estate closed, because respondent             
          bears the burden of proving fraud and because respondent had not            
          yet determined, much less proven, that fraud applies.  We                   
          disagree.                                                                   
               Mr. Pert's and Mrs. Riffe's filing of incorrect returns in             
          which they did not report income is the act upon which respondent           
          based the underlying determination.  The claim arose when they              
          filed their returns, or at the latest, when the returns for those           
          years were due.  We have held that the Commissioner becomes a               
          creditor of a taxpayer for transferee liability purposes at the             
          close of the taxable period in which the tax arose.  Hagaman v.             
          Commissioner, 100 T.C. at 185 (included additions to tax for                
          fraud); O'Sullivan v. Commissioner, T.C. Memo. 1994-17.  Other              
          courts have held that the Commissioner becomes a creditor of a              
          taxpayer when the return on which the tax should be reported is             
          due to be filed.  United States v. Ressler, 433 F. Supp. 459, 463           
          (S.D. Fla. 1977), affd. 576 F.2d 650 (5th Cir. 1978).  The tax              
          years at issue are 1986, 1987, 1988, and 1989.  The tax return              
          for 1989 was due on April 15, 1990.  Mr. Riffe's estate                     





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