- 31 - to fraud, the entire underpayment shall be treated as attributable thereto except to the extent the taxpayer establishes, by a preponderance of the evidence, that some part is not due to fraud. Where taxpayers file a joint return, section 6663 does not apply to a spouse unless some part of the underpayment is due to the fraud of the spouse. Sec. 6663(c). Respondent must prove on a year-by-year basis by clear and convincing evidence that (1) Mr. Wright underpaid his taxes for that year, and (2) that some part of that underpayment was due to fraud. Parks v. Commissioner, 94 T.C. 654, 660-661 (1990); Hebrank v. Commissioner, 81 T.C. 640, 642 (1983). 1. Underpayment of Tax In satisfying the first prong of the fraud test, the Commissioner cannot discharge his burden by simply relying on the taxpayer’s failure to prove error in his determination of the deficiency. Petzoldt v. Commissioner, 92 T.C. 661, 700 (1989); Otsuki v. Commissioner, 53 T.C. 96, 106 (1969). The Commissioner’s burden of proving an underpayment of tax attributable to unreported and indirectly reconstructed income may be satisfied in either of two ways: (1) By proving a likely source of the unreported income, or (2) by disproving any alleged nontaxable source. DiLeo v. Commissioner, 96 T.C. at 873-874. Respondent has met his burden for all of the years in issue. Petitioners and respondent stipulated the amount and source ofPage: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
Last modified: May 25, 2011