- 20 - In respondent's answer, respondent alleged in the alterna- tive to the allegations in the answer that were based on the determinations in the notice that petitioners had increased deficiencies in tax (and underpayments) for the years at issue and that such increased underpayments of tax are due to fraud. OPINION Except for the fraud penalty and the increased deficiencies alleged in respondent's answer on which respondent has the burden of proof, see sec. 7454(a); Rule 142(b) and (a), petitioners have the burden of establishing that respondent's determinations in the notice are erroneous, see Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). We turn to the fraud penalty under section 6663. That is because our resolution of that issue is determinative of pe- titioners' contentions that respondent's deficiency determina- tions in the notice are erroneous, that respondent has not shown that petitioners have the increases in such deficiencies that were alleged as part of respondent's alternative position in the answer, and that the period of limitations for 1992 has expired. In order for the fraud penalty to apply, respondent must prove by clear and convincing evidence that an underpayment exists and that some portion of such underpayment is attributable to fraud. See secs. 6663(a), 7454(a); Rule 142(b); Niedringhaus v. Commissioner, 99 T.C. 202, 210 (1992). If respondent es-Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
Last modified: May 25, 2011