- 63 - fraud. Sec. 6653(b)(1); DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d Cir. 1992). For the addition to tax under section 6653(b)(2) to apply, the Commissioner must establish the specific portion of the underpayment which is attributable to fraud. Sec. 6653(b)(2); DiLeo v. Commissioner, supra at 873. To prove an underpayment of tax, the Commissioner cannot rely on the taxpayer's failure to satisfy his or her burden of proof as to the underlying deficiency. Parks v. Commissioner, 94 T.C. 654, 661 (1990). Where allegations of fraud are intertwined with unreported and indirectly reconstructed income, the Commissioner can prove an underpayment by proving a likely source of the unreported income or, where the taxpayer alleges a nontaxable source, by disproving the alleged nontaxable source. DiLeo v. Commissioner, supra at 873-874. Wilson, Grove, and Cattalo were convicted under section 7206(1) of filing false returns for both 1982 and 1983. Giongo was convicted of filing a false return for 1983, but not 1982. The convictions do not estop petitioners from denying that there was an underpayment of tax or that any such underpayment was due to fraud. Considine v. United States, 227 Ct. Cl. 77, 80-81, 645 F.2d 925, 928 (1981); Wright v. Commissioner, 84 T.C. 636 (1985); Franklin v. Commissioner, T.C. Memo. 1993-184. The convictions, however, are evidence to be considered in deciding whether respondent has proved an underpayment of tax due to fraud.Page: Previous 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 Next
Last modified: May 25, 2011