-41-
this burden for a year, respondent must prove the following: (1)
Robert has an underpayment of tax for that year, and (2) some
part of that underpayment is due to Robert's fraud. Sec.
7454(a);25 Rule 142(b); e.g., 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 those elements must be proven by clear and convincing
evidence. 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 underpayment resulting from fraud, but only that
there is some underpayment and that some part of it is
24(...continued)
The later amendments of this provision by sec. 1503 of the
Tax Reform Act of 1986 (Pub. L. 99-514, 100 Stat. 2085, 2742), by
sec. 1015(b)(2)(B) of the Technical and Miscellaneous Revenue Act
of 1988 (Pub. L. 100-647, 102 Stat. 3342, 3569), and by sec.
7721(a) of the Omnibus Budget Reconciliation Act of 1989 (OBRA
89--Pub. L. 101-239, 103 Stat. 2106, 2395) do not affect the
instant case.
As a result of OBRA 89, the revised fraud addition to tax
now appears in secs. 6663 and 6651(f).
25 SEC. 7454. BURDEN OF PROOF IN FRAUD, FOUNDATION
MANAGER,
AND TRANSFEREE CASES.
(a) Fraud.--In any proceeding involving the issue
whether the petitioner has been guilty of fraud with intent
to evade tax, the burden of proof in respect of such issue
shall be upon the Secretary.
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