Mario Biaggi and Estate of Marie Biaggi - Page 17




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                  Section 6501(a) provides, generally, that any tax must be                            
            assessed within 3 years of the date on which the tax return was                            
            filed.  That general rule has an exception for fraud, which                                
            states, in relevant part:  "In the case of a false or fraudulent                           
            return with the intent to evade tax, the tax may be assessed                               
            * * * at any time."  Sec. 6501(c)(1).  Respondent has the burden                           
            of proof with regard to the additions to tax for fraud.  See sec.                          
            7454(a); Rule 142(b).  In order to carry his burden as to fraud,                           
            respondent must prove that some part of the underpayment for each                          
            of the years in question is due to fraud with the intent to evade                          
            tax.  See sec. 7454(a); Rule 142(b).  The elements of fraud that                           
            respondent must prove under section 6501(c)(1) are the same                                
            elements essential for imposing a fraud penalty under section                              
            6653(b).  See Estate of Temple v. Commissioner, 67 T.C. 143, 159-                          
            160 (1976); Mobley v. Commissioner, T.C. Memo. 1993-60, affd.                              
            33 F.3d 1382 (11th Cir. 1994).                                                             
                  In view of our finding that petitioner's understatement of                           
            tax for both 1983 and 1985 was the result of fraud, we find that                           
            respondent has met his burden under section 6501(c)(1) for each                            
            year in issue.  Therefore, the statute of limitations does not                             
            bar assessment and collection of tax for those years.                                      

                                                            Decision will be entered                   
                                                      under Rule 155.                                  







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