John V. Maher - Page 6

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          I.  Fraud Penalty                                                           
               To sustain his determination of civil fraud, respondent must           
          show, by clear and convincing evidence, that petitioner intended            
          to evade taxes known or believed to be owing by conduct intended            
          to conceal, mislead, or otherwise prevent the collection of                 
          taxes.  Secs. 6663(b), 7454(a); Rule 142(b); see Stoltzfus v.               
          United States, 398 F.2d 1002, 1004 (3d Cir. 1968); Rowlee v.                
          Commissioner, 80 T.C. 1111, 1123 (1983).                                    
               The existence of fraud is a question of fact to be resolved            
          upon consideration of the entire record.  Estate of Pittard v.              
          Commissioner, 69 T.C. 391 (1977); Gajewski v. Commissioner, 67              
          T.C. 181, 199-200 (1976), affd. without published opinion 578               
          F.2d 1383 (8th Cir. 1978).  Fraud is not to be presumed or based            
          upon mere suspicion.  Wainwright v. Commissioner, T.C. Memo.                
          1993-302 (citing Carter v. Campbell, 264 F.2d 930, 935 (5th Cir.            
          1959)).  Because direct evidence of a taxpayer’s intent is rarely           
          available, however, fraud may be proven by circumstantial                   
          evidence and reasonable inferences drawn from the facts.  Spies             
          v. United States, 317 U.S. 492 (1943); Niedringhaus v.                      
          Commissioner, 99 T.C. 202, 211 (1992); Otsuki v. Commissioner, 53           
          T.C. 96, 106 (1969).                                                        
               Petitioner’s scheme to defraud the Kieffers was                        
          reprehensible, but respondent has not convinced us that                     
          petitioner had any specific intent to evade taxes.  In this                 






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