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the Court in writing why he believes that respondent’s motion
should be denied. He failed to do so.5
With respect to respondent’s determinations that Mr.
Clinkscale has a deficiency in tax for each of the taxable years
1994, 1995, and 1996, on the record presented, we sustain those
determinations.
With respect to respondent’s determinations that Mr.
Clinkscale is liable for the fraud penalty under section 6663(a)
for each of the taxable years 1994, 1995, and 1996, section
6663(a) imposes a penalty equal to 75 percent of the portion of
any underpayment that is attributable to fraud. For purposes of
section 6663(a), if the Commissioner of Internal Revenue (Commis-
sioner) establishes that any portion of an underpayment is
attributable to fraud, the entire underpayment is to be treated
as attributable to fraud, except with respect to any portion of
the underpayment that the taxpayer establishes by a preponderance
of the evidence is not attributable to fraud. Sec. 6663(b). In
order for the fraud penalty to apply, the Commissioner must prove
by clear and convincing evidence, sec. 7454(a); Rule 142(b), that
an underpayment exists and that some portion of such underpayment
is attributable to fraud. Niedringhaus v. Commissioner, 99 T.C.
202, 210 (1992).
5The petition alleged that “as set forth in plea agreement,
all taxes from 1994, 95 and 96 have been dismissed”. It is not
clear to us what is meant by that allegation.
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