David M. Leggett - Page 12

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               At trial, petitioner refused to take a position on res-                
          pondent's determination in the notice that his filing status for            
          the years at issue is married, filing separately.  Petitioner               
          presented no evidence at trial to show that that determination is           
          incorrect.  On brief, petitioner makes no reference to respon-              
          dent's determination with respect to his filing status.  On the             
          record before us, we find that petitioner has failed to show that           
          respondent's determination in the notice about his filing status            
          is wrong.                                                                   
               The only issue remaining for our decision is whether pe-               
          titioner is liable for the addition to tax under section 6651(f)            
          for fraudulent failure to file a return for each of the years at            
          issue.  In order for that addition to tax to apply, we must                 
          consider essentially the same elements that are involved in                 
          determining whether a taxpayer is liable for the additions to tax           
          for fraud under section 6663 and its predecessor provision,                 
          section 6653(b).  See Clayton v. Commissioner, 102 T.C. 632, 653            
          (1994).  Respondent must prove by clear and convincing evidence             
          under section 6651(f) that petitioner's tax liability for each              
          year at issue exceeds his prepayment credits and that his failure           
          to file a return for each such year was due to fraud.  See secs.            
          7454(a), 6651(a)(1), (b)(1); Rule 142(b); see also Clayton v.               
          Commissioner, supra.                                                        

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