- 24 - concluded that petitioner underpaid his taxes in the 1988, 1989, and 1991 tax years due in part to unreported income from deposits into the Mitsui account and unsubstantiated wage deductions for amounts paid to Mr. Yoon.6 We must now determine whether petitioner had the requisite fraudulent intent with regard to these underpayments in 1989 and 1991. B. Fraudulent Intent Next, respondent must prove that a portion of each underpayment for 1989 and 1991 was due to fraud. Professional Servs. v. Commissioner, 79 T.C. 888, 930 (1982). The existence of fraud is a question of fact to be resolved upon consideration of the entire record. DiLeo v. Commissioner, 96 T.C. 858, 874 (1991), affd. 959 F.2d 16 (2d Cir. 1992). Fraud is never presumed but, rather, must be established by affirmative evidence. Edelson v. Commissioner, 829 F.2d 828 (9th Cir. 1987), affg. T.C. Memo. 1986-223. Fraud may be proved by circumstantial evidence because direct proof of the taxpayer's intent is rarely available. The taxpayer's entire course of conduct may establish the requisite fraudulent intent. Stone v. Commissioner, supra at 223-224. 6 Respondent does not assert fraud with respect to the yearend ledger adjustment. Thus, the only remaining underpayments as to which respondent is asserting fraud are the $3,000 cash deposit into the Mitsui account in 1989, the checks deposited in 1991 into the same account, and the amounts from the cashed checks that petitioner claims went to Mr. Yoon as compensation.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