- 14 - Petitioners bear the burden of proving that they are not liable for self-employment taxes under section 1401. Rule 142(a). Petitioners have not met their burden on this issue. Accordingly, their unreported income for the years in issue is subject to self-employment tax. Issue 4. Fraud Respondent determined that petitioners are liable for the fraud penalty pursuant to section 6663 for the years in issue. Petitioners assert that they are not liable for the penalty. The existence of fraud is an issue of fact to be determined from a consideration of the entire record. Stratton v. Commissioner, 54 T.C. 255, 284 (1970); Otsuki v. Commissioner, 53 T.C. 96, 105-106 (1969). Respondent has the burden of proving fraud and must affirmatively establish its existence by clear and convincing evidence. Sec. 7454(a); Rule 142(b); Stone v. Commissioner, 56 T.C. 213, 220 (1971); Beaver v. Commissioner, 55 T.C. 85, 92 (1970). Fraud means actual, intentional wrongdoing, and the intent required is the specific purpose to evade a tax believed to be owing. Candela v. United States, 635 F.2d 1272 (7th Cir. 1980); Stoltzfus v. United States, 398 F.2d 1002, 1004 (3d Cir. 1968); Mitchell v. Commissioner, 118 F.2d 308 (5th Cir. 1941), revg. 40 B.T.A. 424 (1939); Wilson v. Commissioner, 76 T.C. 623, 634 (1981), supplemented by 77 T.C. 324 (1981). The Commissioner must show that the taxpayer intended to evade taxes by conduct calculated to conceal, mislead, or otherwise preventPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011