Theodore Langworthy, Jr. - Page 17

                                       - 17 -                                         
               To carry the burden of proof on the fraud exception and the            
          fraud additions and penalties, the Commissioner must show by                
          clear and convincing evidence both (1) that the taxpayer                    
          underpaid his tax for each taxable year in issue and (2) that at            
          least some part of the underpayment was due to fraud.  Sec.                 
          7454(a); Rule 142(b); DiLeo v. Commissioner, 96 T.C. 858, 873               
          (1991), affd. 959 F.2d 16 (2d Cir. 1992); Hebrank v.                        
          Commissioner, 81 T.C. 640, 642 (1983).                                      
               A.   Proof of an Underpayment                                          
               The Commissioner 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 attributable to fraud.             
          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.  To carry that burden, the                       
          Commissioner may not rely on the taxpayer's failure to meet his             
          burden of proving error in the Commissioner's determinations as             
          to the deficiencies.  DiLeo v. Commissioner, supra at 873;                  
          Habersham-Bey v. Commissioner, 78 T.C. 304, 312 (1982); Otsuki v.           
          Commissioner, 53 T.C. 96, 106 (1969).                                       
               In the instant case, it is uncontroverted that petitioner              
          failed to report certain gross receipts during the years in                 
          issue.  Petitioner concedes unreported gross receipts on brief              
          and in his stipulated calculations.  Accordingly, we conclude               
          that the record contains clear and convincing evidence of                   




Page:  Previous  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  Next

Last modified: May 25, 2011