Robert T. Schirle - Page 23

                                       - 23 -                                         

          respondent establishes that any portion of the underpayment is              
          attributable to fraud, the entire underpayment is treated as                
          attributable to fraud and subjected to an addition to tax or                
          penalty, except with respect to any portion of the underpayment             
          that the taxpayer establishes is not attributable to fraud.  Sec.           
          6653(b)(2) for 1988; sec. 6663(b) for 1989 through 1991.                    
               Fraud is intentional wrongdoing on the part of the taxpayer            
          with the specific purpose to evade a tax believed to be owing.              
          McGee v. Commissioner, 61 T.C. 249, 256 (1973), affd. 519 F.2d              
          1121 (5th Cir. 1975).  The existence of fraud is a question of              
          fact to be resolved from the entire record.  Gajewski v.                    
          Commissioner, 67 T.C. 181, 199 (1976), affd. without published              
          opinion 578 F.2d 1383 (8th Cir. 1978).  Respondent must meet his            
          burden through affirmative evidence because fraud is never                  
          imputed or presumed.  Beaver v. Commissioner, 55 T.C. 85, 92                
          (1970).  A taxpayer's entire course of conduct can be indicative            
          of fraud.  Stone v. Commissioner, 56 T.C. 213, 223-224 (1971);              
          Otsuki v. Commissioner, 53 T.C. 96, 105-106 (1969).  Furthermore,           
          a taxpayer's fraudulent original return is not purged by the                
          filing of a subsequent amended return.  Badaracco v.                        
          Commissioner, 464 U.S. 386, 394 (1984).                                     
          A.   Underpayment of Tax                                                    
               Respondent did not assert fraud with respect to any part of            
          the underpayments which we have found for 1990.  We have already            





Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011