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that petitioner is entitled to deduct $1,356.94 as rental
expenses in 1983. Finally, respondent concedes that petitioner
is entitled to deduct one-half of the self-employment tax imposed
for 1982 and 1983 as recalculated. With respect to the items of
income and deductions, respondent computed petitioner’s tax
liability on one-half of the net income determined, pursuant to
California community property law.
Petitioner’s Contentions
Petitioner contends that respondent has the burden of proof,
by clear and convincing evidence, in this case. He equates
respondent’s determination that he failed to file tax returns as
fraud under section 7454(a) and Rule 142(b). Respondent,
however, has not determined the applicability of a civil fraud
penalty in this case. The addition to tax for failure to file,
section 6651(a), and not the addition to tax for fraud, (former)
section 6653(b), is an issue. Failure to file tax returns is not
the equivalent of fraud for purposes of civil tax penalties.
See, e.g., Kotmair v. Commissioner, 86 T.C. 1253, 1261-1262
(1986); Koeneman v. Commissioner, T.C. Memo. 1958-186; cf.
current secs. 6651(f), 6663. The clear and convincing standard
is not applicable in this case. The preponderance of the
evidence supports respondent’s position on each of the issues.
Petitioner argues that he did file tax returns and that the
statute of limitations bars the deficiency notice in this case.
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