-12-
In proving that there is an excess of liability over
credits, respondent may not rely on petitioner’s failure to meet
his burden of proving error in respondent’s determinations as to
the excess. See Petzoldt v. Commissioner, 92 T.C. 661, 700
(1989); Habersham-Bey v. Commissioner, 78 T.C. 304, 312 (1982),
and cases cited therein.
A mere failure to file when there is such an excess does
not itself establish fraud. However, a pattern of consistent
failures to file for several years is strong evidence of fraud.
See Estate of Mazzoni v. Commissioner, 451 F.2d 197, 202 (3d Cir.
1971), affg. T.C. Memos. 1970-144 and 1970-37; Adler v.
Commissioner, 422 F.2d 63, 66 (6th Cir. 1970), affg T.C. Memo.
1968-100; Otsuki v. Commissioner, 53 T.C. at 108.
The issue of fraud is a factual question that is to be
decided on an examination of all the evidence in the record.
Plunkett v. Commissioner, 465 F.2d at 303; Mensik v.
Commissioner, 328 F.2d 147, 150 (7th Cir. 1964), affg. 37 T.C.
703 (1962); Stone v. Commissioner, 56 T.C. at 224.
Respondent must show that petitioner intended to evade
taxes, which he knew or believed were owed, by conduct intended
to conceal, mislead, or otherwise prevent the collection of
taxes. E.g., Webb v. Commissioner, 394 F.2d 366, 377 (5th Cir.
1968), affg. T.C. Memo. 1966-81; Powell v. Granquist, 252 F.2d
56, 60 (9th Cir. 1958); Danenberg v. Commissioner, 73 T.C. 370,
393 (1979); McGee v. Commissioner, 61 T.C. 249, 256-257 (1973),
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