William R.Tinnerman - Page 11

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          (5th Cir. 1984).  Accordingly, we hold that petitioner is liable            
          for the amounts of the deficiencies in his income tax set forth             
          in the notices of deficiency for the 1999 through 2002 taxable              
          years.                                                                      
               We address next whether petitioner is liable for the fraud             
          penalty pursuant to section 6651(f).  In deciding whether a                 
          failure to file is fraudulent under section 6651(f), we consider            
          the same elements that are considered in imposing the addition to           
          tax for fraud under former section 6653(b) and present section              
          6663.  Clayton v. Commissioner, 102 T.C. 632, 653 (1994). Fraud             
          is defined as an intentional wrongdoing designed to evade tax               
          believed to be owing.  Powell v. Granquist, 252 F.2d 56 (9th Cir.           
          1958); Miller v. Commissioner, 94 T.C. 316, 332 (1990).  The                
          Commissioner bears the burden of demonstrating fraud by clear and           
          convincing evidence.  Sec. 7454(a); Rule 142(b).  The existence             
          of fraud is a question of fact to be resolved upon consideration            
          of the entire record.  Korecky v. Commissioner, 781 F.2d 1566,              
          1568 (11th Cir. 1986), affg. per curiam T.C. Memo. 1985-63;                 
          Estate of Pittard v. Commissioner, 69 T.C. 391 (1977).  To carry            
          the burden of proof on the issue of fraud, the Commissioner must            
          show, for each year in issue, that (1) an underpayment of tax               
          exists and (2) some portion of the underpayment is due to fraud.            
          Petzoldt v. Commissioner, 92 T.C. 661, 699 (1989).                          







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