- 12 - caused thereby to respondent cannot be justified. We shall grant respondent’s motion to dismiss pursuant to Rule 123(b) and shall enter a decision against petitioner as to the determined deficiencies for taxable years 1993 and 1994. II. Fraud Penalties Section 6663(a) provides for the imposition of a penalty in “an amount equal to 75 percent of the portion of the underpayment which is attributable to fraud.” In addition, section 6663(b) specifies that if any portion of the underpayment is attributable to fraud, the entire underpayment is treated as attributable thereto, except and to the extent that the taxpayer establishes some part is not due to fraud. Respondent bears the burden of proving the applicability of the civil fraud penalty by clear and convincing evidence. Sec. 7454(a); Rule 142(b). To sustain this burden, respondent must establish by this level of proof both (1) that there was an underpayment of tax for each taxable year at issue and (2) that at least some portion of such underpayment was due to fraud. DiLeo v. Commissioner, 96 T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d Cir. 1992); Petzoldt v. Commissioner, 92 T.C. 661, 699 (1989). A. Underpayments of Tax Where allegations of fraud are intertwined with unreported and indirectly reconstructed income, the Commissioner may satisfyPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011