- 18 - The Commissioner has the burden of proving fraud by clear and convincing evidence. Sec. 7454(a); Rule 142(b). Respondent’s burden of proof under section 6501(c)(1) is the same as that imposed by section 6663. See Schaffer v. Commissioner, 779 F.2d 849, 857 (2d Cir. 1985), affg. in part and remanding in part Mandina v. Commissioner, T.C. Memo. 1982-34. A. Proof of an Underpayment To satisfy the Commissioner’s burden, the Commissioner must show: (1) An underpayment exists; and (2) the taxpayer intended to evade taxes known to be owing by conduct intended to conceal, mislead, or otherwise prevent the collection of taxes. Parks v. Commissioner, 94 T.C. 654, 660-661 (1990). The Commissioner must meet that burden through affirmative evidence because fraud is never imputed or presumed. Petzoldt v. Commissioner, 92 T.C. 661, 699 (1989). If the Commissioner establishes that any portion of an underpayment in a particular year is attributable to fraud, the entire underpayment is treated as attributable to fraud, except with respect to any portion of the underpayment which the taxpayer establishes (by a preponderance of the evidence) is not attributable to fraud. Sec. 6663(b). Respondent used the net worth method to establish petitioners’ income and the fact of an underpayment. Under the net worth method, taxable income is computed by reference to thePage: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: March 27, 2008