-33- See Griffin v. California, 380 U.S. 609 (1965). However, the Supreme Court has clearly stated that a trier of fact in a civil proceeding may hold a party's silence against him. See Baxter v. Palmigiano, 425 U.S. 308 (1976). The trier of fact may not reach a decision adverse to the civil party solely by reason of the party's silence, because that would make the assertion of the Fifth Amendment privilege impermissibly costly. However, the trier may take the party's silence into account along with the other evidence in the case. See Baxter v. Palmigiano, supra at 316-320; LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389-391 (7th Cir. 1995) (silence is a relevant factor to be considered in light of the proffered evidence, but the direct inference of guilt from silence is forbidden). The civil fraud addition to tax is neither punishment nor a criminal penalty. See Helvering v. Mitchell, 303 U.S. 391 (1938); Ianniello v. Commissioner, 98 T.C. 165 (1992) (civil fraud addition not punishment). Therefore, we are permitted to draw an adverse inference from a taxpayer's silence in deciding whether the fraud penalty applies. See Petzoldt v. Commissioner, 92 T.C. 661, 683-686 (1989). In this case, we take petitioner's silence into account, as a factor to be considered in combination with all the other evidence in the record, in confirming our decision that petitioner is liable for the fraud additions for 1989-92.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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