Charles Shaw - Page 21

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          C.   Whether Petitioner Is Liable for Fraud Under Section 6663(a)           
               1.   Background                                                        
               Respondent contends that petitioner is liable for the                  
          penalty for fraud under section 6663(a) for 1993-95.  Fraud is              
          actual, intentional wrongdoing designed to evade a tax believed             
          to be owing.  Webb v. Commissioner, 394 F.2d 366, 377 (5th Cir.             
          1968), affg. T.C. Memo. 1966-81.  To prevail, the Commissioner              
          must prove by clear and convincing evidence:  (a) Petitioner                
          underpaid tax for each year in issue, and (b) some part of the              
          underpayment is due to fraud.  Secs. 6663(b), 7454(a); Rule                 
          142(b); Parks v. Commissioner, 94 T.C. at 660-661; Petzoldt v.              
          Commissioner, 92 T.C. 661, 699 (1989).  If respondent shows that            
          any part of an underpayment is due to fraud, the entire                     
          underpayment is treated as due to fraud unless the taxpayer shows           
          by a preponderance of the evidence that part of the underpayment            
          is not due to fraud.  Sec. 6663(b).                                         
               The fact that petitioner failed to meet his burden of proof            
          on the underlying deficiencies in this case does not relieve                
          respondent of the burden to prove, by clear and convincing                  
          evidence, both elements of fraud.  Fairchild v. United States,              
          240 F.2d 944, 947 (5th Cir. 1957); Olinger v. Commissioner, 234             
          F.2d 823 (5th Cir. 1956), affg. in part and revg. in part T.C.              
          Memo. 1955-9; Drieborg v. Commissioner, 225 F.2d 216, 218 (6th              








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