Michael J. Downing and Sandra M. Downing - Page 43

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          burden for a year, respondent must prove two elements, as                   
          follows:  (1) That Michael has an underpayment of tax for that              
          year, and (2) that some part of the underpayment is due to fraud.           
          See sec. 7454(a);22 Rule 142(b); see, e.g., Carter v. Campbell,             
          264 F.2d 930, 936 (5th Cir. 1959); Stone v. Commissioner, 56 T.C.           
          213, 220 (1971); Otsuki v. Commissioner, 53 T.C. 96, 105-106                
          (1969).23  Each of the elements must be proven by clear and                 
          convincing evidence.  See DiLeo v. Commissioner, 96 T.C. 858, 873           
          (1991), affd. 959 F.2d 16 (2d Cir. 1992); Parks v. Commissioner,            
          94 T.C. 654, 663-664 (1990).                                                
               For this purpose, respondent need not prove the precise                
          amount of the underpayment resulting from fraud, but only that              
          there is some underpayment and that some part of it is                      
          attributable to fraud.  See, e.g., Lee v. United States, 466 F.2d           
          11, 16-17 (5th Cir. 1972);  Plunkett v. Commissioner, 465 F.2d              
          299, 303 (7th Cir. 1972), affg. T.C. Memo. 1970-274.  In carrying           
          this burden, respondent may not rely on petitioners’ failure to             


               22  SEC. 7454.  BURDEN OF PROOF IN FRAUD, FOUNDATION                   
          MANAGER, AND TRANSFEREE CASES.                                              
                    (a) Fraud.-- In any proceeding involving the issue                
               whether the petitioner has been guilty of fraud with intent            
               to evade tax, the burden of proof in respect of such issue             
               shall be upon the Secretary.                                           
               23  The elements of fraud under sec. 6663 are essentially              
          the same as those we considered under sec. 6653(b) of prior law.            
          See also Rhone-Poulenc Surfactants v. Commissioner, 114 T.C. 533,           
          547-548 (2000); Clayton v. Commissioner, 102 T.C. 632, 652-653              
          (1994); Houser v. Commissioner, 96 T.C. 184, 185 n.1 (1991).                





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