- 14 -
Accordingly, we find that the individuals were employees of
petitioner for purposes of employment taxes.3
IV. Additions to Tax
Finally, we turn to the question of whether petitioner is
liable for additions to tax under section 6651(f) for the
fraudulent failure to file employment tax returns as respondent
has determined.
Section 6651(f) imposes an addition to tax of up to 75
percent of the amount of tax required to be shown on a return
where the failure to file the return is due to fraud. The
Commissioner bears the burden of proving fraud by clear and
convincing evidence. Sec. 7454(a); Rule 142(b); Clayton v.
Commissioner, 102 T.C. 632, 646, 652-653 (1994). We consider the
same factors under section 6651(f) that are considered in
imposing the fraud penalty under section 6663 and former section
6653(b). Clayton v. Commissioner, supra at 653; see also Neely
v. Commissioner, 116 T.C. 79, 85-86 (2001) (applying the
extensive body of law addressing fraud in the context of income,
estate, and gift taxes to the employment tax context).
3Petitioner does not articulate a basis for relief under
sec. 530 of the Revenue Act of 1978, Pub. L. 95-600, 92 Stat.
2885. Even if petitioner had sought sec. 530 relief, such relief
would be denied because petitioner did not file any returns with
respect to the individuals in question as required by sec.
530(a)(1)(B).
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