- 13 - OPINION A. Addition to Tax for Fraud Under Section 6653(b) and Penalty Under Section 6663(a) 1. Background Respondent contends that petitioner is liable for the addition to tax for fraud under section 6653(b) for 1988 and the fraud penalty under section 6663(a) for 1989, and concedes that Mrs. Groves is not liable for fraud. Respondent has the burden of proving fraud by clear and convincing evidence. See sec. 7454(a); Rule 142(b). Respondent must establish: (a) Petitioner underpaid tax for each year in issue, and (b) some part of the underpayment is due to fraud. See sec. 6653(b); Parks v. Commissioner, 94 T.C. 654, 660-661 (1990); Petzoldt v. Commissioner, 92 T.C. 661, 699 (1989). 2. Underpayment Petitioners concede that they underpaid tax related to their sales of OPCS stock for 1988 and 1989. 3. Fraudulent Intent For purposes of section 6653(b), fraud is the intentional commission of an act to evade a tax believed to be owing. See Webb v. Commissioner, 394 F.2d 366, 377 (5th Cir. 1968), affg. T.C. Memo. 1966-81; Mitchell v. Commissioner, 118 F.2d 308, 310 (5th Cir. 1941), revg. 40 B.T.A. 424 (1939). Fraud is never presumed; it must be established by affirmative evidence. See Beaver v. Commissioner, 55 T.C. 85, 92 (1970). The CommissionerPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011