Sheila D. Clinkscale & Jantz S. Clinkscale - Page 7

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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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