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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
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