Eddie Cordes, Inc., et al. - Page 42




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          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 not            





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