John W. Marsh - Page 21




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          uphold respondent’s determination that the amount of $105,000 be            
          included in petitioner's 1989 gross income.4                                
          3.  Fraud                                                                   
               Respondent determined that petitioner is liable for an                 
          addition to tax for fraud for each of the years 1986, 1987, 1988,           
          and 1989.  Respondent bears the burden of proof on this issue.              
          See sec. 7454(a); Rule 142(b).  In order to discharge the burden,           
          respondent must prove by clear and convincing evidence:  (1) An             
          underpayment exists for each year in issue, and (2) some portion            
          of the underpayment for that year is due to fraud.  See sec.                
          7454(a); Petzoldt v. Commissioner, 92 T.C. 661, 699 (1989).                 
               In order to show fraud respondent must show that petitioner            
          intended to evade taxes known to be owing by conduct designed to            
          conceal, mislead, or otherwise prevent the collection of taxes.             
          See Stoltzfus v. United States, 398 F.2d 1002, 1004 (3d Cir.                
          1968); Rowlee v. Commissioner, 80 T.C. 1111, 1123 (1983).  Fraud            
          is intentional wrongdoing on the part of the taxpayer with the              
          specific intent to evade a tax known to be owing.  See Bradford             
          v. Commissioner, 796 F.2d 303, 307 (9th Cir. 1986), affg. T.C.              
          Memo. 1984-601; Conforte v. Commissioner, 692 F.2d 587, 592 (9th            



               4Petitioner has made no claim for deductions of legal fees             
          and costs in the event we were to find the $105,000 includable in           
          gross income; therefore, we express no opinion on the                       
          deductibility of these items under the particular facts of this             
          case.                                                                       





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