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Respondent argues that the statute requires only an “intent to
evade tax.” Under respondent’s position the intent to evade may
be imputed to the taxpayer from a third person. In the setting
of this case, respondent would have us impute to petitioner any
intent to evade tax that petitioner’s father may have had. Under
respondent’s interpretation, the period for assessment would
remain open indefinitely in a situation where, as here, a
taxpayer is found not to have intended to evade tax, but some
third person involved in the reporting of income did so intend.
Assuming arguendo that respondent’s interpretation of
section 6501(c)(1) is correct, for respondent to be successful in
this case, he first would have to establish the factual predicate
that petitioner’s tax preparer/father had an “intent to evade
tax”. With respect to extending the period for assessment,
respondent bears the burden of proof. Mecom v. Commissioner, 101
T.C. 374 (1993), affd. without published opinion 40 F.3d 385 (5th
Cir. 1994). We have found that respondent has not shown by clear
and convincing evidence that petitioner intended to evade tax
when he signed the returns in question. We have also found that
respondent has not shown that petitioner’s father/return preparer
intended to evade tax. Therefore, the question of whether
respondent’s interpretation of section 6501(c)(1) is correct is
rendered moot.
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