Carmelo Montalbano - Page 11
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a more exacting showing is required to establish the requisite
wrongful intent in this civil proceeding than in the criminal
proceeding. See Moore v. United States, 360 F.2d at 356 (“the
first proceeding being criminal in nature, it follows that the
burden of proof met by the Government there was more exacting
than that required of it in this civil case”).
In conclusion, the issue of petitioner’s fraudulent intent
under section 6663(a) is foreclosed by collateral estoppel.
Petitioner does not dispute the underlying tax underpayment. We
are satisfied that there is no genuine issue of fact requiring a
trial in this case. Accordingly, we hold that imposition of the
section 6663(a) fraud penalty is proper. We shall grant
respondent’s motion for summary judgment and deny petitioner’s
cross-motion for summary judgment.
An appropriate order
and decision will be entered.
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Last modified: March 27, 2008