Mario Biaggi and Estate of Marie Biaggi - Page 15




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                        2.  Section 6653(b)(2)                                                         
                  Under section 6653(b)(2), a separate addition to tax (equal                          
            to 50 percent of the interest payable under section 6601) is                               
            determined with respect to "the portion" of the underpayment                               
            attributable to fraud.  Respondent bears the burden of proving                             
            the specific portion of the underpayment of tax that is                                    
            attributable to fraud for purposes of applying the section                                 
            6653(b)(2) addition to tax.  See DiLeo v. Commissioner, 96 T.C.                            
            at 873; Franklin v. Commissioner, T.C. Memo. 1993-184.  In all                             
            other respects, respondent's burdens are identical under section                           
            6653(b)(1) and (2).                                                                        
                  Respondent asserts that the entire underpayments for both                            
            1983 and 1985 are due to fraud.  For the above stated reasons, we                          
            find that respondent has clearly and convincingly established                              
            that the entire underpayments are due to fraud.  As petitioner's                           
            unreported income from the receipt of the Wedtech shares is the                            
            sole source of the underpayment for 1983, the entire underpayment                          
            for 1983 is due to fraud.  Similarly for 1985, as the unreported                           
            gain from the sale of 25,000 shares is the sole source of                                  
            petitioner's underpayment in 1985, the entire underpayment is due                          
            to fraud.  Accordingly, we sustain respondent's determinations of                          
            additions to tax under section 6653(b)(2) for 1983 and 1985 on                             
            the total underpayments for those years.                                                   








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