- 29 - capital; thus, the settlement payments from Darling Yachts, Inc., are taxable income, and respondent’s determination is sustained. See id. Net Operating Loss Carryback Respondent determined that the adjustments determined for petitioner’s 1994 taxable year eliminated the net operating loss that had been carried back from that year to 1991. As a consequence, respondent determined a deficiency of $4,323 for 1991. See Pesch v. Commissioner, 78 T.C. 100 (1982). Respondent’s deficiency determination for 1994 has been sustained, thereby eliminating any net operating loss for that year. As a consequence, the deficiency determined for 1991 is also sustained. See id.; Toussaint v. Commissioner, T.C. Memo. 1984-25, affd. 743 F.2d 309 (5th Cir. 1984). Fraud Respondent determined that the underpayments of tax on petitioner’s 1994, 1995, 1996, and 1997 returns, as well as his amended return for 1991, were due to fraud. To establish fraud, the Commissioner must show by clear and convincing evidence that there is an underpayment and that a portion of the underpayment is attributable to fraud. See sec. 7454(a); Rule 142(b); Petzoldt v. Commissioner, 92 T.C. 661, 699 (1989). If the Commissioner establishes that any portion of an underpayment is attributable to fraud, the entire underpayment shall be treatedPage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
Last modified: May 25, 2011