Jimmie E. Cannon - Page 9




                                        - 9 -                                         
          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.             






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  Next

Last modified: May 25, 2011