Monty Bisceglia and Patricia Bisceglia - Page 25




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          (6th Cir. 1994), affg. T.C. Memo. 1992-616.  Section 7454(a)                
          provides that, in any case involving the issue of fraud with                
          intent to evade tax, the burden of proof in respect of that issue           
          is on respondent.  Respondent’s burden of proof with respect to             
          the issue of fraud is to be carried by clear and convincing                 
          evidence.  Rule 142(b).  Fraud is not to be presumed or based               
          upon circumstantial evidence which creates merely a suspicion of            
          fraud.  Wainwright v. Commissioner, T.C. Memo. 1993-302 (citing             
          Carter v. Campbell, 264 F.2d 930, 935 (5th Cir. 1959)).                     
              To support a finding of tax fraud, respondent must show that           
          the taxpayer engaged in conduct with the intent to evade taxes              
          that he knew or believed to be owing.  United States v. Walton,             
          909 F.2d 915, 926 (6th Cir. 1990).  Direct evidence of intent is            
          often unavailable and unnecessary; the courts may infer                     
          fraudulent intent from strong circumstantial evidence.  Id.                 
               In fraud cases, it may happen that, although the taxpayer              
          fails to overcome the presumption of correctness as to the                  
          asserted deficiencies in tax, the Commissioner will also fail to            
          establish that the same deficiencies were the result of fraud.              
          "Both parties to a proceeding may fail through inadequate proof             
          on the several issues."  Kashat v. Commissioner, 229 F.2d 282,              
          285 (6th Cir. 1956), affg. in part and revg. in part a Memorandum           
          Opinion of this Court dated March 29, 1954.  "That this differing           
          burden of proof in the Tax Court can have an important                      






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