Chung Ui Kim and Ok Hui Kim - Page 11




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          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 a                      







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