-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.
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