Darlow T. Madge - Page 7




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                         (2) by substituting “75 percent for                          
                    “25 percent”.                                                     
          Respondent has the burden of proving fraud.  See sec. 7454(a).              
          In considering the additions to tax or penalties for fraud, we              
          consider the same elements under former section 6653(b)(1) and              
          under section 6651(f).  See Clayton v. Commissioner, 102 T.C.               
          632, 653 (1994).                                                            
               Respondent has proven unreported income from petitioner’s              
          business and has allowed deductions that respondent could                   
          identify.  Petitioner has failed to present any evidence of                 
          additional deductions that would offset his income.  See United             
          States v. Shavin, 320 F.2d 308, 310-311 (7th Cir. 1963); Elwert             
          v. United States, 231 F.2d 928, 933-936 (9th Cir. 1956);                    
          Greenwood v. Commissioner, T.C. Memo. 1990-362.                             
               The existence of fraud is a question of fact to be resolved            
          upon consideration of the entire record.  See Gajewski v.                   
          Commissioner, 67 T.C. 181, 199 (1976), affd. without published              
          opinion 578 F.2d 1383 (8th Cir. 1978).  Fraud may be proved by              
          circumstantial evidence because direct proof of the taxpayer’s              
          intent is rarely available.  The taxpayer’s entire course of                
          conduct may establish the requisite fraudulent intent.  See Stone           
          v. Commissioner, 56 T.C. 213, 223-224 (1971); Otsuki v.                     
          Commissioner, 53 T.C. 96, 105-106 (1969).                                   
               Over the years, courts have developed various factors,                 
          referred to as badges of fraud, that tend to establish fraud.               





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