Donald Ray Hartley - Page 10




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               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).                                  








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