Hector Prowse - Page 18

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          his return a letter purporting to substantiate the deduction.               
          The letter was falsified.  During the pendency of this case,                
          petitioner submitted another letter from a different lawyer                 
          purporting to substantiate the deduction.  That letter was also             
          falsified.  The record contains no other document to substantiate           
          the expense.  Respondent properly disallowed the deduction.                 
          IV.  Fraud Penalty                                                          
               Section 6663 authorizes the Commissioner to impose a 75-               
          percent penalty on a taxpayer if any part of an underpayment is             
          due to fraud.  The Commissioner must prove a taxpayer’s liability           
          for the fraud penalty by clear and convincing evidence.  Sec.               
          7454(a); Rule 142(b).                                                       
               In order for the Commissioner to prove that a taxpayer is              
          liable for the fraud penalty, he must establish that (1) an                 
          underpayment of tax exists, and (2) some part of the underpayment           
          is due to fraud.  DiLeo v. Commissioner, 96 T.C. 858, 873 (1991),           
          affd. 959 F.2d 16 (2d Cir. 1992).  Fraud is established by                  
          showing that the taxpayer intended “to evade tax believed to be             
          owing by conduct intended to conceal, mislead, or otherwise                 
          prevent the collection of such tax.”  Recklitis v. Commissioner,            
          91 T.C. 874, 909 (1988).                                                    
               The existence of fraud is a question of fact to be resolved            
          upon consideration of the entire record.  DiLeo v. Commissioner,            
          supra at 874.  Fraud is never presumed and must be established by           






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