- 22 - preparer is also an indication of fraud, Korecky v. Commissioner, 781 F.2d 1566, 1568 (11th Cir. 1986), affg. per curiam T.C. Memo. 1985-63, as is a conviction under section 7206(1), Wright v. Commissioner, 84 T.C. 636 (1985). Although the mere failure to report income is not sufficient to establish fraud, Merritt v. Commissioner, 301 F.2d 484, 487 (5th Cir. 1962), affg. T.C. Memo. 1959-172, a pattern of consistent underreporting of income, especially when accompanied by other circumstances showing an intent to conceal, justifies the inference of fraud, see Holland v. United States, 348 U.S. 121, 139 (1954); Parks v. Commissioner, 94 T.C. 654, 664 (1990); Otsuki v. Commissioner, 53 T.C. at 108. In the instant case, considering the record as a whole, we conclude that there are sufficient badges of fraud to carry respondent's burden of proof. The record reveals a pattern of consistent underreporting of income by petitioner during all of the years in issue. Moreover, it is uncontroverted that petitioner failed to maintain adequate records of his unreported income and expenses and that petitioner conducted much of his business in cash. Additionally, petitioner failed to be forthcoming with his return preparer, Mr. Dillon, disclosing neither his cash purchases nor his band expenses, including band advertising. Furthermore, while a conviction under section 7206(1) does not establish fraud, it is one factor to be considered. Wright v. Commissioner, supra at 643-644. We conclude that the record in the instant case contains clear and convincing evidence that there was an underpayment forPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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