- 12 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011