- 42 - that (1) there is an underpayment, and (2) at least some of the underpayment is attributable to fraud. Shaw v. Commissioner, 27 T.C. 561, 570 (1956), affd. 252 F.2d 681 (6th Cir. 1958). “If he carries this burden by clear and convincing evidence, * * * the correctness of the deficiencies determined by him will [again] be presumed.” Id. This burden does not require respondent to prove each item comprising the underpayment set forth in the notice of deficiency, nor does it require respondent to prove all of the underpayment is attributable to fraud. Sec. 6663(b); see also Shaw v. Commissioner, supra at 570; Bencivenga v. Commissioner, T.C. Memo. 1989-239. CFC’s concession of a $226,316 underpayment, of which $226,069 is attributable to fraud, satisfies respondent’s burden of proving that some part of CFC’s underpayment is due to fraud. Console v. Commissioner, T.C. Memo. 2001-232 (underpayment attributable to fraud deemed stipulated under Rule 91(f) for failure to prosecute can satisfy both elements of respondent’s burden of proof); Wagner v. Commissioner, T.C. Memo. 1996-355 (stipulation to underpayment satisfies that element of respondent’s burden of proof); Barlow v. Commissioner, T.C. Memo. 1994-11 (stipulation to underpayment satisfies that element of respondent’s burden of proof and stipulation to fraud acknowledged by Court but decided on other grounds); see also Frazier v. Commissioner, 91 T.C. 1, 12-13 (1988). Consequently, a part of CFC’s 1994 underpayment is due to fraud. Sec. 6663(b). Unless CFC establishes that a portion of the underpayment is notPage: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
Last modified: May 25, 2011