- 30 - 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 estatePage: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
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