Hans C. Sherrer - Page 33




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          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.                   






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