Virginia Ferguson, f.k.a. Virginia Del Bosque, and Estate of Armand J. Del Bosque, Deceased, Lori Del Bosque, Special Administrator, et al. - Page 31

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               A taxpayer is liable for an addition to tax or penalty for             
          fraud equal to 75 percent of the part of the underpayment that is           
          due to fraud.  Secs. 6653(b), 6663(a).  If the Commissioner shows           
          that any part of an underpayment is due to fraud, the entire                
          underpayment is treated as due to fraud unless the taxpayer                 
          proves that part of the underpayment is not due to fraud.  Secs.            
          6653(b)(2), 6663(b).                                                        
               Respondent bears the burden of proving the applicability of            
          the civil fraud additions to tax and 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 the underpayment was            
          due to fraud.  DiLeo v. Commissioner, 96 T.C. 858, 873 (1991),              
          affd. 959 F.2d 16 (2d Cir. 1992); Parks v. Commissioner, 94 T.C.            
          654, 660-661 (1990); Petzoldt v. Commissioner, 92 T.C. 661, 699             
          (1989).                                                                     





               9(...continued)                                                        
          denying that their underpayments of income tax for 1987 were due            
          to fraud for purposes of sec. 6653(b).  See Johnson v. Sawyer, 47           
          F.3d 716, 722 (5th Cir. 1995); Gray v. Commissioner, 708 F.2d 243           
          (6th Cir. 1983), affg. T.C. Memo. 1981-1; Brooks v. Commissioner,           
          82 T.C. 413, 431 (1984), affd. without published opinion 772 F.2d           
          910 (9th Cir. 1985); Arctic Ice Cream Co. v. Commissioner, 43               
          T.C. 68 (1964); Amos v. Commissioner, 43 T.C. 50 (1964), affd.              
          360 F.2d 358 (4th Cir. 1965).                                               





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