John R. Toney - Page 12

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          Commissioner, 880 F.2d 260 (10th Cir. 1989), affg. T.C. Memo.               
          1984-392; Wapnick v. Commissioner, T.C. Memo. 1997-133.                     
               Consistent with the foregoing, petitioner’s criminal                   
          conviction under section 7201 with respect to his 1986 taxable              
          year collaterally estops him from denying in the present civil              
          tax proceeding:  (1) There is an underpayment in his income tax             
          for 1986, and (2) part of the underpayment is due to fraud within           
          the meaning of section 6653(b).  Tomlinson v. Lefkowitz, 334 F.2d           
          262, 266 (5th Cir. 1964); C.B.C. Super Mkts., Inc. v.                       
          Commissioner, 54 T.C. 882, 893 (1970).                                      
               Section 6653(b)(2) provides:  “If the Secretary establishes            
          that any portion of an underpayment is attributable to fraud, the           
          entire underpayment shall be treated as attributable to fraud,              
          except with respect to any portion of the underpayment which the            
          taxpayer establishes is not attributable to fraud.”  As                     
          previously discussed, respondent has established through the                
          doctrine of collateral estoppel that a portion of the                       
          underpayment is due to fraud.  As a matter of law, this finding             
          establishes that the entire portion of the underpayment is                  
          attributable to fraud and shifts to petitioner the burden to                
          establish that a portion of the underpayment is not attributable            
          to fraud.  Under the standards for summary judgment, the burden             
          shifts to petitioner to “come forward with ‘specific facts                  
          showing there is a genuine issue for trial.’” Matsushita Elec.              






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