John Marretta - Page 11

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               Accordingly, we are convinced that respondent has proven by            
          clear and convincing evidence that an underpayment exists for the           
          1992 and 1993 tax years.                                                    
               Respondent has thus carried his burden of proving that there           
          was an underpayment of tax for the 1992 and 1993 tax years.                 
          Petitioner has not introduced cogent evidence to support his                
          claim that the underpayment is less than that determined by                 
          respondent.  In particular, petitioner has not introduced                   
          sufficient evidence to support his claim that the CNC                       
          distributions he received in 1992 and 1993 were a return of                 
          capital.                                                                    
               B.  Intent To Defraud                                                  
               As stated above, the Commissioner bears the burden of                  
          proving fraud by clear and convincing evidence.  Fraud is the               
          intentional wrongdoing on the part of a taxpayer to evade a tax             
          believed to be owing.  Sadler v. Commissioner, 113 T.C. at 102;             
          DiLeo v. Commissioner, supra at 874.  Whether petitioner’s                  
          underpayments of tax for 1992 and 1993 were due to fraud is a               
          question of fact that must be considered based on an examination            
          of the entire record and petitioner’s entire course of conduct.             
          See DiLeo v. Commissioner, supra at 874.  Fraud may be proved by            
          circumstantial evidence.  Id.  No single factor is necessarily              
          dispositive, but a combination of several factors is persuasive             
          circumstantial evidence of fraud.  Petzoldt v. Commissioner, 92             






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