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false or fraudulent return with the intent to evade tax, the tax
may be assessed at any time. Sec. 6501(c)(1). Respondent bears
the burden of proving the applicability of this exception, and he
must prove the same elements of fraud under section 6501(c)(1) as
he is required to prove with respect to the additions to tax for
fraud. Estate of Johnson v. Commissioner, T.C. Memo. 2001-182.
In this case, respondent has shown by clear and convincing
evidence that an underpayment of tax exists for each of the years
1985, 1986, 1987, and 1988, and he has shown that at least some
part of that underpayment for each of those years is a result of
fraud by petitioner. Therefore, we hold that the open period of
limitations of section 6501(c)(1) applies, and section 6501(a)
does not bar assessment of petitioner’s deficiencies in taxes.
See DiLeo v. Commissioner, 96 T.C. at 880.99
Decision will be
entered under Rule 155.
99Since we hold that each of the tax years at issue is open
under sec. 6501(c)(1), we do not address respondent’s alternative
argument that the 1988 assessment is not barred under sec.
6501(a), because the period of limitations specified in sec.
6501(e)(1) applies and was extended by sec. 7609(e)(1).
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