Carlye A. Christianson - Page 16




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          the revenue agent on May 21, 1992, around August 13, 1996, the              
          Service corrected that action on its records and reflected on               
          those records an entry for "substitute for return" for each year            
          at issue, which is an administrative entry used in cases where a            
          taxpayer has not filed a return.                                            
               We hold that petitioner has failed to carry her burden of              
          establishing a prima facie case showing that she filed her                  
          returns for the years at issue on May 21, 1992, and that the                
          respective periods of limitations prescribed by section 6501 for            
          those years have expired.5  Since petitioner has failed to                  
          establish that those returns were filed on May 21, 1992, the tax            
          for each year at issue may be assessed.  See sec. 6501(c)(3).               
               We shall now address the additions to tax under section                
          6653(b) for 1985 through 1988 and under section 6651(f) for 1989            
          and 1990.  In order for the additions to tax for fraud under                
          section 6653(b) to apply, respondent must prove by clear and                
          convincing evidence that an underpayment exists and that some               
          portion of such underpayment is due to fraud.  See sec. 7454(a);            
          Rule 142(b); Niedringhaus v. Commissioner, 99 T.C. 202, 210                 
          (1992).  In order for the additions to tax for fraudulent failure           
          to file under section 6651(f) to apply, we must consider essen-             
          tially those same elements.  See Clayton v. Commissioner, 102               

               5We express no opinion herein as to the result that would              
          obtain if petitioner had intended to file the copies of her                 
          returns for the years at issue that she presented, through Mr.              
          Golemb, to the revenue agent on May 21, 1992.                               




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