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been applicable in the absence of petitioner’s ‘substantially
diminished mental capacity.’”
Assuming, for sake of argument, that petitioner has
correctly assessed the implications of his criminal sentence
(notwithstanding that the District Court imposed against him the
maximum fine for his offense under the sentencing guidelines),
this does not alter the fact of his criminal conviction, which
conclusively established that he willfully attempted to evade
tax.
For purposes of both the section 7201 offense and the civil
fraud penalty, the requisite wrongful intent is the intent to
evade tax. Mitchell v. Commissioner, 118 F.2d 308 (5th Cir.
1941), revg. 40 B.T.A. 424 (1939); DiLeo v. Commissioner, 96 T.C
at 874; Amos v. Commissioner, 43 T.C. at 55.3 The only practical
difference between the constituent elements of criminal tax
evasion under section 7201 and civil fraud is the “larger quantum
of proof required in a criminal evasion case”. Moore v. United
3 The statutory predecessor of sec. 6663, sec. 293(b) of the
1939 Internal Revenue Code, specifically referred to “fraud with
intent to evade tax”. Although this language was omitted from
subsequent versions of the civil fraud penalty, this change was
not intended to alter the coverage of the statute or the burden
of proof necessary to establish fraud. See Goodwin v.
Commissioner, 73 T.C. 215, 227 (1979); Bittker & Lokken, Federal
Taxation of Income, Estates and Gifts, par. 114.6, at 114-57 n.16
(2d ed. 1992). This conclusion is buttressed by sec. 7454(a),
which continues to provide, as did its predecessor statute in the
1939 Code, that respondent bears the burden to prove that
petitioner “has been guilty of fraud with intent to evade tax”.
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Last modified: March 27, 2008