Raymond E. Vogt, Jr. - Page 13



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               Fraud is defined as an intentional wrongdoing designed to              
          evade tax believed to be owing.  Powell v. Granquist, 252 F.2d 56           
          (9th Cir. 1958); Miller v. Commissioner, 94 T.C. 316, 332 (1990).           
          Fraud is a question of fact that must be considered based on an             
          examination of the entire record and petitioner's entire course             
          of conduct.  Petzoldt v. Commissioner, 92 T.C. 661, 699 (1989).             
          Fraud is never presumed and must be established by independent              
          evidence of fraudulent intent.  Id.  The Commissioner bears the             
          burden of demonstrating fraud by clear and convincing evidence.             
          Sec. 7454(a); Rule 142(b).  To carry the burden of proof on the             
          issue of fraud, the Commissioner must show, for each year at                
          issue, that (1) an underpayment of tax exists and (2) some                  
          portion of the underpayment is due to fraud.  Petzoldt v.                   
          Commissioner, supra at 699.  Respondent’s burden of proving fraud           
          can be met by facts deemed admitted pursuant to Rule 37(c).                 
          Doncaster v. Commissioner, 77 T.C. at 337 (1981); see Marshall v.           
          Commissioner, 85 T.C. 267, 272-273 (1985).  Fraud may also be               
          proven by circumstantial evidence, and reasonable inferences may            
          be drawn from the facts because direct evidence is rarely                   
          available.  Delvecchio v. Commissioner, T.C. Memo. 2001-130,                
          affd. 37 Fed. Appx. 979 (11th Cir. 2002).                                   
               Circumstantial evidence that may give rise to a finding of             
          fraud includes:  (1) Understatement of income; (2) inadequate               
          records; (3) failure to file tax returns; (4) providing                     
          implausible or inconsistent explanations of behavior; (5)                   






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