Stephen P. and Sharon L. Sherwood - Page 9

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          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 tax           




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