- 6 - We find petitioner has failed properly to prosecute his case. He did not appear for his trial, he has disobeyed this Court's order, and he has failed to cooperate with respondent. We find that these failures were due to petitioner’s willfulness, bad faith, or fault. We shall grant respondent’s motion and dismiss in part this case for failure properly to prosecute. This leaves the issue of whether petitioner is liable for the additions to tax for fraud determined by respondent. Respondent must prove fraud by clear and convincing evidence. See sec. 7454(a); Rule 142(b); Rowlee v. Commissioner, 80 T.C. 1111, 1123 (1983); Drabiuk v. Commissioner, T.C. Memo. 1995-260. Fraud requires a showing that the taxpayer intended to evade a tax known or believed to be owing. See Stoltzfus v. United States, 398 F.2d 1002, 1004 (3d Cir. 1968). In order to carry his burden as to fraud, respondent must prove that: (1) Petitioner underpaid his tax in each year, and (2) some part of each underpayment was due to fraud. See Roots v. Commissioner, T.C. Memo. 1997-187; Lee v. Commissioner, T.C. Memo. 1995-597; Merlino v. Commissioner, T.C. Memo. 1993-200. Under section 6653(b)(1)(A) and (B), if respondent establishes that some part of petitioner’s underpayment was due to fraud, the entire underpayment is treated as attributable to fraud unless petitioner proves otherwise. See sec. 6653(b)(2). The mere fact that we have sustained respondent's deficiency determination doesPage: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011