- 4 - 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 whetherPage: Previous 1 2 3 4 5 6 Next
Last modified: May 25, 2011