- 14 - acknowledged that petitioner’s 1990 return fraudulently under- stated petitioner’s income by $125,000 and that petitioner’s 1991 return understated petitioner’s income by $150,000. Moreover, in petitioner’s response, petitioner admits that “There clearly are monies due and owing the IRS which the petitioner admits to and wants to settle.” On the instant record, we find that respondent has estab- lished by clear and convincing evidence that there was an under- payment of petitioner’s tax for each of its taxable years 1990 and 1991. In order to prove fraudulent intent, the Commissioner must prove by clear and convincing evidence that the taxpayer intended to evade tax, which the taxpayer believed to be owing, by conduct intended to conceal, mislead, or otherwise prevent the collection of such tax. Laurins v. Commissioner, 889 F.2d 910, 913 (9th Cir. 1989), affg. Norman v. Commissioner, T.C. Memo. 1987-265; Parks v. Commissioner, supra. The existence of fraud is a question of fact to be resolved upon consideration of the entire record. DiLeo v. Commissioner, supra at 874; Gajewski v. Commis- sioner, 67 T.C. 181, 199 (1976), affd. without published opinion 578 F.2d 1383 (8th Cir. 1978). Fraud is never presumed or imputed and should not be found in circumstances which create at most only suspicion. Toussaint v. Commissioner, 743 F.2d 309, 312 (5th Cir. 1984), affg. T.C. Memo. 1984-25; Petzoldt v.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011