- 16 -
6663 for 1989 and 1990.18
The Commissioner has the burden of proving the applicability
of the fraud exception to the general period of limitations.
Sec. 7454; Rule 142(b); Farmers Feed Co. v. Commissioner, 10
B.T.A. 1069, 1075-1076 (1928). The Commissioner's burden is the
same as that which is borne with respect to the fraud additions
imposed under section 6653(b) and the fraud penalties imposed
under section 6663. See, e.g., Schaffer v. Commissioner, 779
F.2d 849, 857 (2d Cir. 1985), affg. in part and remanding in part
T.C. Memo. 1982-34; Asphalt Indus., Inc. v. Commissioner, 384
F.2d 229, 232 (3d Cir. 1967), revg. on other grounds 46 T.C. 622
(1966); Estate of Temple v. Commissioner, 67 T.C. 143, 159-160
(1976). Accordingly, we consider together (1) the fraud
exception to the general 3-year period of limitations with
respect to 1987, 1988, and 1990 and (2) the fraud additions and
penalties for all years in issue, including 1989.
17(...continued)
(1) In general.--If any part of any underpayment (as
defined in subsection (c)) of tax required to be shown on a
return is due to fraud, there shall be added to the tax an
amount equal to 75 percent of the portion of the
underpayment which is attributable to fraud.
18 Sec. 6663 reads, in pertinent part, as follows:
SEC. 6663(a). Imposition of Penalty.--If any part
of any underpayment of tax required to be shown on a
return is due to fraud, there shall be added to the tax
an amount equal to 75 percent of the portion of the
underpayment which is attributable to fraud.
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