- 7 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011