Robert T. Schirle - Page 22

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          1991, respectively.  Petitioner, however, has failed to prove               
          that more than two-thirds of the yearend balances did not                   
          constitute income.  To the extent petitioner's yearend                      
          adjustments exceed two-thirds of the yearend balances, we sustain           
          respondent's determination.5                                                
          Fraud                                                                       
               The addition to tax or penalty in the case of fraud is a               
          civil sanction provided primarily as a safeguard for the                    
          protection of the revenue and to reimburse the Government for the           
          heavy expense of investigation and the loss resulting from a                
          taxpayer's fraud.  Helvering v. Mitchell, 303 U.S. 391, 401                 
          (1938).  Respondent has the burden of proving, by clear and                 
          convincing evidence, an underpayment for each year and that some            
          part of the underpayment was due to fraud.  Sec. 7454(a); Rule              
          142(b).  To satisfy his burden of proof, respondent must show two           
          things:  (1) An underpayment exists; and (2) the taxpayer                   
          intended to evade taxes known to be owing by conduct intended to            
          conceal, mislead, or otherwise prevent the collection of taxes.             
          Parks v. Commissioner, 94 T.C. 654, 660-661 (1990).  The mere               
          failure to report income, however, is not sufficient to establish           
          fraud.  Switzer v. Commissioner, 20 T.C. 759, 765 (1953).  If               

               5  Except for 1991, if no part of an underpayment for a tax            
          year is due to fraud, respondent is barred from assessing a                 
          deficiency resulting from the yearend ledger adjustment issue               
          pursuant to sec. 6501(a).  See discussion of limitations period,            
          infra.                                                                      




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