Linda A. Fields - Page 13




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          return, a spouse is not liable for the fraud penalty unless some            
          portion of the underpayment is attributable to that spouse’s                
          fraudulent conduct.  See sec. 6663(c).                                      
               In the context of Federal tax law, fraud entails intentional           
          wrongdoing with the purpose of evading a tax believed to be                 
          owing.  E.g., Neely v. Commissioner, 116 T.C. 79, 86 (2001).  As            
          stated by the Court of Appeals for the Fifth Circuit:                       
               ‘Fraud implies bad faith, intentional wrongdoing and a                 
               sinister motive.  It is never imputed or presumed and                  
               the court should not sustain findings of fraud upon                    
               circumstances which at most create only suspicion.’                    
               * * *  ‘Negligence, whether slight or great, is not                    
               equivalent to the fraud with intent to evade tax named                 
               in the statute.  The fraud meant is actual, intentional                
               wrongdoing, and the intent required is the specific                    
               purpose to evade a tax believed to be owing.  Mere                     
               negligence does not establish either.’  * * *                          
          Webb v. Commissioner, 394 F.2d 366, 377 (5th Cir. 1968) (quoting            
          Carter v. Campbell, 264 F.2d 930, 935-936 (5th Cir. 1959)), affg.           
          T.C. Memo. 1966-81.                                                         
               To succeed in the instant case, respondent must show that he           
          had a reasonable basis for believing that he could prove his                
          allegation of petitioner’s fraud by clear and convincing                    
          evidence.  See, e.g., Rutana v. Commissioner, 88 T.C. 1329, 1337-           
          1338 (1987).  More particularly, he must show that he had a                 
          reasonable basis for believing that he could prove by clear and             
          convincing evidence that petitioner willfully intended to evade a           
          tax she believed to be owing.                                               







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