Paul Mifsud and Maria G. Mifsud - Page 20




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               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-                





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