Louis E. Peyton - Page 12

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          III.  Fraud Penalties                                                       
               Section 6663(a) provides for the imposition of a penalty in            
          “an amount equal to 75 percent of the portion of the underpayment           
          which is attributable to fraud.”  In addition, section 6663(b)              
          specifies that, if any portion of the underpayment is                       
          attributable to fraud, the entire underpayment is treated as                
          attributable thereto, except and to the extent that the taxpayer            
          establishes some part is not due to fraud.                                  
               Respondent bears the burden of proving the applicability of            
          the civil fraud penalty by clear and convincing evidence.  Sec.             
          7454(a); Rule 142(b).  To sustain this burden, respondent must              
          establish by this level of proof both (1) that there was an                 
          underpayment of tax for the taxable year in issue and (2) that at           
          least some portion of such underpayment was due to fraud.  DiLeo            
          v. Commissioner, 96 T.C. 858, 873 (1991), affd. 959 F.2d 16 (2d             
          Cir. 1992); Petzoldt v. Commissioner, supra at 699.                         
               A.  Underpayments of Tax                                               
               An underpayment will exist in a scenario such as that                  
          presented by the case at bar where unreported gross receipts are            
          not exceeded by costs of goods sold and deductible expenses.  In            
          establishing the requisite underpayment, the Commissioner may not           
          simply rely on the taxpayer’s failure to prove error in the                 
          deficiency determination.  DiLeo v. Commissioner, supra at 873;             
          Parks v. Commissioner, 94 T.C. 654, 660-661 (1990); Otsuki v.               






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