Jerry Lee Harvey - Page 39




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          establish by a preponderance of the evidence that a portion is               
          not attributable to fraud.  See secs. 6653(b)(2), 6663(b).                   
               The Commissioner has the burden of proving fraud by clear               
          and convincing evidence.  See sec. 7454; Rule 142(b); Parks v.               
          Commissioner, 94 T.C. at 660.  First, the Commissioner must prove            
          that there is an underpayment.  See Parks v. Commissioner, supra.            
          Second, the Commissioner must show that the taxpayer intended to             
          evade taxes by conduct intended to conceal, mislead, or otherwise            
          prevent tax collection.  See Stoltzfus v. United States, 398 F.2d            
          1002, 1004 (3d Cir. 1968); Parks v. Commissioner, supra at 661;              
          Rowlee v. Commissioner, 80 T.C. 1111, 1123 (1983).                           
               Petitioner has stipulated that he failed to report                      
          significant amounts of interest income.  In addition, he has                 
          failed to establish that these amounts are offset by unreported              
          deductions.  Therefore, we conclude that respondent has presented            
          sufficient evidence that petitioner underpaid his taxes for the              
          years in issue.                                                              
               Next, respondent must prove by clear and convincing evidence            
          that petitioner had fraudulent intent.  See Parks v.                         
          Commissioner, supra at 664.  Fraud is defined as an intentional              
          wrongdoing designed to evade tax believed to be owing.  See                  
          Edelson v. Commissioner, 829 F.2d 828, 833 (9th Cir. 1987), affg.            
          T.C. Memo. 1986-223.  The existence of fraud is a question of                
          fact to be resolved upon consideration of the entire record.  See            





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