- 5 - intentionally filed false 1991 and 1992 returns and that an underpayment exists for these years. Bradford v. Commissioner, 796 F.2d 303, 307-308 (9th Cir. 1986), affg. T.C. Memo. 1984-601; Considine v. United States, 683 F.2d 1285, 1287 (9th Cir. 1982); Wright v. Commissioner, 84 T.C. 636, 643-644 (1985). Respondent cannot rely solely on petitioner’s conviction to sustain his burden of establishing fraud but must clearly and convincingly prove that petitioner intended to evade tax. Sec. 7454(a); Rule 142(b); Parks v. Commissioner, 94 T.C. 654, 660-661 (1990); Wright v. Commissioner, supra at 643-644. This burden is met where respondent proves conduct intended to conceal, mislead, or otherwise prevent the collection of tax. Parks v. Commissioner, supra at 661. Fraud is not to be imputed or presumed but rather must be established by some independent evidence. Beaver v. Commissioner, 55 T.C. 85, 92 (1970). Respondent has failed to meet his burden. Respondent did not present any witnesses or introduce sufficient evidence to establish that any portion of the underreported income is attributable to fraud. See sec. 6663(b); Petzoldt v. Commissioner, 92 T.C. 661, 698-699 (1989). Instead, respondent focused on petitioner’s criminal indictment for bank fraud, for which petitioner had been acquitted, and income petitionerPage: Previous 1 2 3 4 5 6 7 Next
Last modified: May 25, 2011