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