- 24 - The very uncertainty as to Louisiana law that leads us to conclude that the Commissioner’s position on income-splitting was substantially justified, also leads us to conclude that respondent would have had to present an extraordinarily strong case to persuade us by clear and convincing evidence that Sandra believed her marriage contract filing was ineffective under Louisiana law. See Danenberg v. Commissioner, supra at 393-394. We have not found any evidence in the record, nor any evidence that respondent offered or otherwise contended was admissible, that would suggest that it was reasonable for respondent to believe that respondent could prove this essential element of a fraud case against Sandra. Indeed, respondent’s discussion in the memorandum on Sandra’s motion for costs deals only with Sandra’s involvement in the record-keeping and reporting regarding Michael’s business; it does not suggest, even by way of a conclusory comment, that respondent expected to prove by clear and convincing evidence that Sandra knew or believed that Sandra had to report any omitted income from Michael’s business. We conclude that respondent failed to establish that respondent’s position as to Sandra’s civil fraud penalty was substantially justified. However, respondent’s failure to carry the heavy burden of proof as to the 75-percent civil fraud penalty would have left inPage: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
Last modified: May 25, 2011