Walter L. Medlin - Page 72

                                       - 156 -                                        
          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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