- 9 - Section 6663(a) provides that if any part of an underpayment of tax required to be shown on an income tax return is due to fraud, there shall be added to the tax an amount equal to 75 percent of the portion of the underpayment that is attributable to fraud. The notice of deficiency determined that petitioner was liable for the 75-percent penalty based on the entire underpayment for each of the 3 taxable years in issue. The Commissioner’s determinations are ordinarily presumed to be correct, and generally the taxpayer bears the burden of proving otherwise. Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933). However, this is not the case when fraud is alleged. See sec. 7454(a). In that instance, the Commissioner bears the burden of proving fraud by clear and convincing evidence. Sec. 7454(a); Rule 142(b). Fraud is defined as an intentional wrongdoing designed to evade tax believed to be owing. Edelson v. Commissioner, 829 F.2d 828, 833 (9th Cir. 1987), affg. T.C. Memo. 1986-223; Bradford v. Commissioner, 796 F.2d 303, 307 (9th Cir. 1986), affg. T.C. Memo. 1984-601. Fraud is never presumed, but is a question of fact to be resolved upon consideration of the entire record. Gajewski v. Commissioner, 67 T.C. 181, 199 (1976), affd. without published opinion 578 F.2d 1383 (8th Cir. 1978); see also Beaver v. Commissioner, 55 T.C. 85 (1970).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 NextLast modified: November 10, 2007