Skirvin G. Johnson - Page 10




                                       - 10 -                                         

          offered no evidence to corroborate his testimony, and, without              
          more, petitioner's explanation is implausible and not credible.             
               Respondent also determined that petitioner's underpayment of           
          income tax for 1989 was due to fraud.  The penalty in the case of           
          fraud is a civil sanction provided primarily as a safeguard for             
          the protection of the revenue and to reimburse the Government for           
          the heavy expense of investigation and the loss resulting from              
          the taxpayer's fraud.  Helvering v. Mitchell, 303 U.S. 391, 401             
          (1938).  Respondent has the burden of proving, by clear and                 
          convincing evidence, an underpayment for 1989 and that some part            
          of an underpayment for that year was due to fraud.  Sec. 7454(a);           
          Rule 142(b).  If respondent establishes that any portion of the             
          underpayment is attributable to fraud, the entire underpayment is           
          treated as attributable to fraud and subjected to a 75-percent              
          penalty unless the taxpayer establishes that some part of the               
          underpayment is not attributable to fraud.  Sec. 6663(b).                   
          Respondent's burden is met if it is shown that the taxpayer                 
          intended to conceal, mislead, or otherwise prevent the collection           
          of taxes.  Rowlee v. Commissioner, 80 T.C. 1111, 1123 (1983).               
               The existence of fraud is a question of fact to be resolved            
          upon consideration of the entire record.  King's Court Mobile               
          Home Park, Inc. v. Commissioner, 98 T.C. 511, 516 (1992).  Fraud            
          will never be presumed.  Beaver v. Commissioner, 55 T.C. 85, 92             
          (1970).  Fraud may, however, be proved by circumstantial evidence           





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  Next

Last modified: May 25, 2011