Zabetti A. Pappas - Page 70




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          addition to tax is equal to 5 percent of the amount required to             
          be shown as tax on the return, with an additional 5 percent for             
          each additional month or fraction thereof during which such                 
          failure continues, not exceeding 25 percent in the aggregate.               
          If, however, the failure to file any return is fraudulent, then             
          the addition to tax is equal to 15 percent of the amount required           
          to be shown as tax on the return, with an additional 15 percent             
          for each additional month or fraction thereof during which such             
          failure continues, not exceeding 75 percent in the aggregate.               
          Sec. 6651(f).  Respondent has determined that petitioner’s                  
          failure to file for the years in issue was fraudulent.                      
               The Commissioner must prove fraud by clear and convincing              
          evidence.  See sec. 7454(a); Rule 142(b); Clayton v.                        
          Commissioner, 102 T.C. 632, 646 (1994).  In determining whether             
          petitioner’s failure to file was fraudulent within the meaning of           
          section 6651(f), we consider the same elements that are relevant            
          in imposing the penalty for underpayment of tax due to fraud                
          under section 6663.  Clayton v. Commissioner, supra at 653.                 
               Establishing fraud requires proof that the taxpayer “acted             
          with an intent to evade paying taxes” and may be proved by                  
          circumstantial evidence.  Douge v. Commissioner, 899 F.2d 164,              
          168 (2d Cir. 1990), affg. in part and revg. in part and remanding           
          an order of this Court dated June 6, 1988.  “Such evidence may              
          include (1) consistent and substantial understatement of income,            






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