- 9 - or "badges", which tend to establish the existence of fraud. See Clayton v. Commissioner, supra at 647. Respondent argues that petitioners were fully aware of their obligation to pay Federal income tax on their income for the years at issue since they paid tax on the same type of income in previous years. Respondent contends that petitioners' underpayment for 1991 is attributable to a fraudulent procurement of a refund of withheld taxes. Respondent further asserts that petitioners' omission of Social Security numbers on the submitted Forms 1040-NR was intended to mislead respondent. We find that the badges of fraud are not sufficiently present in the facts of this case. First, petitioners filed what they believed, albeit erroneously, to be the proper forms. We note that respondent accepted these forms as a valid filing and continues to rely upon such acceptance as a basis for the section 6651(a) failure to file addition to tax for 1991. Second, petitioner husband did not attempt to stop the withholding of taxes from his paychecks. Third, petitioner husband's omission of his Social Security number from his Form 1040-NR does not amount to concealment since it was listed on his submitted Form W-2. If his intent was to conceal this information, he would not have disclosed it to respondent in this way. We recognize that, absent respondent's acceptance of this Form 1040-NR, the mere attachment of a Form W-2 would not remedy a form which was otherwise invalid for lack of sufficient information by which taxPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
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