- 11 -11 fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time." Where respondent asserts that a taxpayer has filed a fraudulent return with the intent to evade tax, the burden of proof is on the respondent. Sec. 7454(a); Rule 142(b). Respondent must satisfy his burden of proof with "clear and convincing evidence". Rule 142(b); Fox v. Commissioner, 61 T.C. 704, 717 (1974). To establish fraud, respondent must prove, by clear and convincing evidence, for each year and with respect to each petitioner, that: "(1) petitioner underpaid his income tax and (2) some part of the underpayment was due to fraud." Recklitis v. Commissioner, 91 T.C. 874, 909 (1988) (citations omitted); see also Hebrank v. Commissioner, 81 T.C. 640, 642 (1983). Although respondent need not prove the precise amount of the underpayment resulting from fraud, respondent may not carry his burden by merely relying on a taxpayer's failure to carry the burden of proof on the underlying deficiency. DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Otsuki v. Commissioner, 53 T.C. 96, 106 (1969). A. Underreporting of Tax Respondent asserts that petitioners had unreported income arising from the checks issued by J.C. Penney for delivery services rendered by AJF to Custom Decorating and fuel reimbursements for fuel expenses incurred by AJF.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011