-11-
this burden of proof for a year, respondent must prove the
following: (1) Petitioner’s tax liability for that year exceeds
petitioner’s income tax withholding and other prepayment credits,
and (2) petitioner’s failure to file a timely tax return for that
year is due to fraud. Sec. 7454(a); Rule 142(b); see Carter v.
Campbell, 264 F.2d 930, 936 (5th Cir. 1959); Stone v.
Commissioner, 56 T.C. 213, 220 (1971); Otsuki v. Commissioner, 53
T.C. 96, 105, 106 (1969). Each of these elements must be proven
by clear and convincing evidence. See DiLeo v. Commissioner, 96
T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Parks v.
Commissioner, 94 T.C. 654, 663-664 (1990); Hebrank v.
Commissioner, 81 T.C. 640, 642 (1983).
For this purpose, respondent need not prove the precise
amount of the excess of liability over credits, but only that
there is some excess and that the failure to timely file is in
some respect attributable to fraud. See Lee v. United States,
466 F.2d 11, 16-17 (5th Cir. 1972); Plunkett v. Commissioner, 465
F.2d 299, 303 (7th Cir. 1972), affg. T.C. Memo. 1970-274.
4(...continued)
(f) Increase in Penalty for Fraudulent Failure to
File.--If any failure to file any return is fraudulent,
paragraph (1) of subsection (a) shall be applied--
(1) by substituting “15 percent” for “5 percent”
each place it appears, and
(2) by substituting “75 percent” for “25 percent”.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011