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Respondent contends, pursuant to section 6651(f), that petitioner
fraudulently failed to file his returns.
Respondent must establish by clear and convincing evidence
that petitioner, by failing to file, intended to evade tax. See
sec. 7454(a); Clayton v. Commissioner, 102 T.C. 632, 646, 652-653
(1994). While a taxpayer’s failure to file a tax return does
not, standing alone, establish fraud, an inference of fraud is
justified when the failure to file is coupled with other badges
of fraud that establish an intent to conceal or mislead. See
Zell v. Commissioner, 763 F.2d 1139, 1145-1146 (10th Cir. 1985),
affg. T.C. Memo. 1984-152; Clayton v. Commissioner, supra at 653
(stating that “we must consider the same elements” in determining
the fraud penalty, pursuant to section 6663, and fraudulent
failure to file, pursuant to section 6651(f)); Kotmair v.
Commissioner, 86 T.C. 1253 (1986).
In Kotmair, the Commissioner determined that a self-employed
taxpayer, who was convicted of willfully failing to file Federal
income tax returns and did not pay estimated taxes or maintain
adequate books and records, committed fraud, pursuant to section
6653(b). The Court held that the Commissioner had not
established that the taxpayer had the requisite intent to evade
tax because “There was no evidence of any falsification of books
or records, no evidence of any concealment or misleading”. Id.
at 1261. Similarly, at trial, when the Court inquired whether
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