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The third and fourth issues for decision are whether
petitioners are liable for the section 6651(f) addition to tax
for 1992 and 1993. Respondent determined in the alternative that
the section 6651(a)(1) addition to tax would apply in the event
it was decided that the failure to file was not fraudulent. As
noted infra, respondent bears the burden of proving fraud issues
by clear and convincing evidence. Section 7454(a); Rule 142(b).
Section 6651(f) provides that the section 6651(a)(1)
addition to tax shall be increased to 15 percent of the tax
required to be shown on the return for each month or fraction
thereof for which there is a failure to file a return, up to 75
percent in the aggregate, where such failure to file is
fraudulent.
It would be repetitive to discuss the reasons why we are
unconvinced that petitioners acted fraudulently in failing to
file their 1992 and 1993 returns as the reasons enumerated infra
in regard to the 1991 fraud penalty are similarly relevant for
these taxable years. However, we must still address respondent's
alternative determination that petitioners are liable for the
section 6651(a)(1) addition to tax for 1992 and 1993.
Irrespective of the fact that respondent has taken an
inconsistent position with regard to petitioners' Forms 1040-NR,2
2 For 1991, respondent accepted petitioners' Forms 1040-
NR as a filing of a return. However, for 1992 and 1993,
respondent determined that these Forms 1040-NR did not constitute
a filing.
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