Orion Contracting Trust, Kevin Peter Carmel, General Manager - Page 14

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          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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