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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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