- 70 - 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,Page: Previous 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 Next
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