James O. Jondahl - Page 19

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              The determination of fraud for purposes of section                      
         6501(c)(1) is the same as the determination of fraud for purposes            
         of the penalty under section 6663.  Neely v. Commissioner, 116               
         T.C. 79, 85 (2001); Rhone-Poulenc Surfactants & Specialties v.               
         Commissioner, 114 T.C. 533, 548 (2000).  Respondent has the                  
         burden of showing fraud by clear and convincing evidence.  See               
         sec. 7454(a); Rule 142(b).                                                   
              Petitioner’s conviction under section 7206(1) does not prove            
         fraud; respondent must show that petitioner intended to evade tax            
         in filing the false returns.  See Wright v. Commissioner, 84 T.C.            
         636, 643 (1985).  For Federal tax purposes, fraud entails                    
         intentional wrongdoing with the purpose of evading a tax believed            
         to be owing.  See Neely v. Commissioner, supra at 86.  In order              
         to show fraud, respondent must prove:  (1) An underpayment                   
         exists; and (2) petitioner intended to evade taxes known to be               
         owing by conduct intended to conceal, mislead, or otherwise                  
         prevent the collection of taxes.  See Parks v. Commissioner, 94              
         T.C. 654, 660-661 (1990).                                                    
              A.   Underpayment of Tax                                                
              Respondent must first show by clear and convincing evidence             
         that petitioner made an underpayment of tax in each of 1990,                 
         1991, 1992, and 1993.  Respondent may not rely on petitioner’s               
         failure to carry his burden of proof to sustain respondent’s                 
         burden of proving fraud.  See id. at 661.  We conclude that                  






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