Steven W. Pond - Page 4

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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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