- 11 - petitioner’s omissions, thus, clearly and convincingly establish underpayments for 1983 and 1985. b. Fraudulent Intent The second element of section 6653(b)(1) is the taxpayer's state of mind, to wit, whether the taxpayer intended to evade tax believed to be owing by conduct intended to conceal, mislead, or otherwise prevent the collection of such tax. See, e.g., Recklitis v. Commissioner, 91 T.C. 874, 909 (1988). The existence of a fraudulent state of mind is a question of fact to be determined from the entire record. See, e.g., id. Fraud is never imputed or presumed; it may, however, be proved by circumstantial evidence, because direct proof of the taxpayer's intent is rarely available. See, e.g., id. at 910-911. Respondent need not establish that tax evasion was a primary motive of petitioner but may satisfy his burden by showing that a tax-evasion motive played any part in petitioner's conduct, including conduct also serving to conceal another crime. See Spies v. United States, 317 U.S. 492, 499 (1943)("If the tax- evasion motive plays any part in such conduct the offense may be made out even though the conduct may also serve other purposes such as concealment of other crime."); Recklitis v. Commissioner, supra at 910. Petitioner was convicted under section 7206(1) of willfully making false statements on his Federal income tax returns forPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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