Michael W. Duncan - Page 10

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          may not rely on a taxpayer’s failure to carry his or her burden             
          of proof with respect to the underlying deficiency.  Parks v.               
          Commissioner, 94 T.C. 654, 660-661 (1990); Petzoldt v. Commis-              
          sioner, 92 T.C. 661, 700 (1989).  The Commissioner must prove               
          only that an underpayment exists, and not the precise amount of             
          such underpayment.  DiLeo v. Commissioner, 96 T.C. 858, 873                 
          (1991), affd. 959 F.2d 16 (2d Cir. 1992); Petzoldt v. Commis-               
          sioner, supra at 699-700.                                                   
               Petitioner did not report as income in his 1990 return                 
          and/or his 1991 return the following:  (1) The forgone interest             
          on petitioner’s outstanding loan balance with Duncan & Associates           
          for 1990 and 1991; (2) petitioner’s 1990 retirement plan with-              
          drawals; and (3) petitioner’s 1990 and 1991 personal-benefit                
          amounts, including petitioner’s 1991 check amount.  Nor did                 
          petitioner report in his 1990 return the 10-percent additional              
          tax imposed by section 72(t) with respect to petitioner’s 1990              
          retirement plan withdrawals.  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 his taxable years 1990              
          and 1991.                                                                   
               In order to prove fraudulent intent, the Commissioner must             






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