-9-
to be owing by conduct intended to conceal, mislead, or otherwise
prevent the collection of taxes. Parks v. Commissioner, 94 T.C.
654, 661 (1990). The Commissioner may not simply rely upon the
taxpayer's failure to show error in the determinations of the
deficiencies. DiLeo v. Commissioner, 96 T.C. 858, 873 (1991),
affd. 959 F.2d 16 (2d Cir. 1992). Furthermore, the mere failure
to report income is not sufficient to establish fraud, Merritt v.
Commissioner, 301 F.2d 484, 487 (5th Cir. 1962), affg. T.C. Memo.
1959-172, but a pattern of consistent underreporting of income,
especially when accompanied by other circumstances showing an
intent to conceal, may justify the inference of fraud, Holland v.
United States, 348 U.S. 121, 139 (1954); Parks v. Commissioner,
supra at 664. However, where there is no evidence of fraudulent
intent, such as falsification, concealment, or deception, the
Commissioner has not carried his burden. Kotmair v.
Commissioner, 86 T.C. 1253, 1260 (1986).
After considering petitioner’s testimony as a whole, we find
that petitioner lacked the requisite fraudulent intent at the
times he was required to file returns for 1999 through 2003. As
respondent points out, petitioner failed to file returns for 1999
through 2003, did not make estimated tax payments for those
years, and was not particularly cooperative with respondent, and
these are “badges of fraud” from which we may infer fraudulent
intent. Bradford v. Commissioner, 796 F.2d 303, 307 (9th Cir.
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