- 11 - Issue 2: Fraud Penalty Respondent has determined that petitioners are liable for fraud penalties under section 6663(a) for 1993, 1994, and 1995. A taxpayer is liable for a 75-percent penalty on the part of an underpayment that is attributable to fraud. See secs. 6653(b), 6663(a). Respondent must prove fraud by clear and convincing evidence. See sec. 7454(a); Rule 142(b); Rowlee v. Commissioner, 80 T.C. 1111, 1123 (1983); Drabiuk v. Commissioner, T.C. Memo. 1995-260. In order to carry his burden as to fraud, respondent must prove: (1) Petitioners underpaid their tax in each year, and (2) some part of each underpayment was due to fraud. See Laurins v. Commissioner, 889 F.2d 910, 913 (9th Cir. 1989), affg. Norman v. Commissioner, T.C. Memo. 1987-265; Beddow v. Commissioner, T.C. Memo. 1999-232; Roots v. Commissioner, T.C. Memo. 1997-187; Lee v. Commissioner, T.C. Memo. 1995-597. a. Underpayment of Tax Respondent can satisfy his burden of proving the first prong of the fraud test; i.e., an underpayment, when the allegations of fraud are intertwined with unreported and reconstructed income in one of two ways. Respondent may prove an underpayment by proving a likely source of the unreported income. See Holland v. United States, 348 U.S. 121 (1954); Parks v. Commissioner, 94 T.C. 654, 661 (1990). Alternatively, where the taxpayer alleges aPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011