David D. Le, a.k.a. David Dung Le, a.k.a. Dung V. Le and Kim Huong Le, a.k.a. Kim Le, et al. - Page 20

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          penalty of 75 percent of the portion of an underpayment that is             
          attributable to fraud.  In order for the Court to sustain                   
          respondent’s determination as to the applicability of these                 
          penalties to the Les, respondent must prove by clear and                    
          convincing evidence:  (1) The Les underpaid their taxes for 1990            
          and 1991, and (2) some part of each underpayment was due to                 
          fraud.  Once respondent has met this burden, we consider all of             
          the underpayment to be attributable to fraud unless petitioners             
          establish otherwise.  Sec. 6663(b).                                         
               On the basis of our review of the record, we conclude that             
          respondent has proven the first prong of the two-part test.  The            
          record establishes clearly and convincingly that petitioners                
          failed to include the distributions in their 1990 and 1991 gross            
          income.  We conclude that respondent has proven that petitioners            
          underpaid their Federal income taxes for both 1990 and 1991.                
               As to the second prong of the test; i.e., the presence of              
          fraud, the existence of fraud is a question of fact.  Gajewski v.           
          Commissioner, 67 T.C. 181, 199 (1976), affd. without published              
          opinion 578 F.2d 1383 (8th Cir. 1978).  Fraud is never presumed             
          or imputed; it must be established by independent evidence that             
          establishes a fraudulent intent on the taxpayer’s part.  Otsuki             
          v. Commissioner, 53 T.C. 96 (1969).  Because direct proof of a              
          taxpayer’s intent is rarely available, fraud may be proven by               
          circumstantial evidence and reasonable inferences may be drawn              






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