KERBAUCH v. COMMISSIONER
United States Board of Tax Appeals
1. Fraud is never presumed; accordingly, no presumption of correctness attaches to the finding by respondent that a taxpayer has been guilty of fraud. 2. Where the respondent has determined a deficiency and fraud penalty and taxpayer states in his petition that the deficiency, which represents tax and penalty, is all in controversy, the issue of fraud is before the Board. 3. The issue of fraud being before the Board, there being no admission thereof and no evidence proving…
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1. Fraud is never presumed; accordingly, no presumption of correctness attaches to the finding by respondent that a taxpayer has been guilty of fraud. 2. Where the respondent has determined a deficiency and fraud penalty and taxpayer states in his petition that the deficiency, which represents tax and penalty, is all in controversy, the issue of fraud is before the Board. 3. The issue of fraud being before the Board, there being no admission thereof and no evidence proving such fraud, a motion of respondent for judgment for the fraud penalty will be denied.
1Concurrence
McMahon,
concurring: The provision of section 907 (a), Revenue Act of 1924, as amended by section 601, Revenue Act of 1928, is as follows:
* * * In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, where no hearing has been held before the enactment of the Revenue Act of 1928, the burden of proof in respect of such issue shall be upon the Commissioner. * * * [Emphasis ours.]
The word “ involving ” as used here has a broad meaning. It has a broader meaning than the word “ pleaded.” The word “ issue ’! as used here is not qualified by the…
2Cases cited3 opinions
- Miller-Pocahontas Coal Co. v. CommissionerUnited States Board of Tax Appeals · 1931
- Carlton Bldg. Co. v. CommissionerUnited States Board of Tax Appeals · 1933
- Buchhalter v. CommissionerUnited States Board of Tax Appeals · 1933