4. * * * As set forth in plea agreement, all taxes from 1994, 95

   96 have been dismissed only 1997 is in question. Appeals are in

   concerning 1997 and awaiting judgement. At that time final, if

   any, taxes & penalties due will be assesed. (Please refer to The

   United States District Court for the Northern2005 Tax Ct. Memo LEXIS 182">*188 District of Ohio

   Eastern Division Case No 99-00368) [Reproduced literally.]

Discussion

Respondent's motion pertains to the taxable years 1994, 1995, and 1996. The notice that respondent issued to Mr. Clinkscale and Ms. Clinkscale also made determinations for the taxable year 1997. We conclude that the petition filed in this case placed in issue only the taxable years 1994, 1995, and 1996 and that the taxable year 1997 is not before the Court. See, e.g., O'Neil v. Commissioner, 66 T.C. 105">66 T.C. 105 (1976).

The Court may grant summary judgment where there is no genuine issue of material fact and a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518">98 T.C. 518, 98 T.C. 518">520 (1992), affd. 17 F.3d 965">17 F.3d 965 (7th Cir. 1994).

All of the facts on which respondent relies in respondent's motion have been deemed admitted and/or not disputed. The facts deemed admitted include the material facts on which we may proceed to resolve the issues in respondent's motion, including the issue relating to the fraud penalties under section 6663(a), see, e.g., Doncaster v. Commissioner, 77 T.C. 334">77 T.C. 334, 77 T.C. 334">337 (1981). We conclude that2005 Tax Ct. Memo LEXIS 182">*189 there are no genuine issues of material fact regarding the issues raised in respondent's motion.

The Court gave Mr. Clinkscale ample opportunity to inform the Court in writing why he believes that respondent's motion should be denied. He failed to do so. ⁵

With respect to respondent's determinations that Mr. Clinkscale has a deficiency in tax for each of the taxable years 1994, 1995, and 1996, on the record presented, we sustain those determinations.

With respect to respondent's determinations that Mr. Clinkscale is liable for the fraud penalty under section 6663(a) for each of the taxable years 1994, 1995, and 1996, section 6663(a) imposes a penalty equal to 75 percent of the portion of any underpayment that is attributable to fraud. For purposes of section 6663(a), if the Commissioner of Internal Revenue (Commissioner) establishes that2005 Tax Ct. Memo LEXIS 182">*190 any portion of an underpayment is attributable to fraud, the entire underpayment is to be treated as attributable to fraud, except with respect to any portion of the underpayment that the taxpayer establishes by a preponderance of the evidence is not attributable to fraud. Sec. 6663(b). In order for the fraud penalty to apply, the Commissioner must prove by clear and convincing evidence, sec. 7454(a); Rule 142(b), that an underpayment exists and that some portion of such underpayment is attributable to fraud. Niedringhaus v. Commissioner, 99 T.C. 202">99 T.C. 202, 99 T.C. 202">210 (1992).

To prove the existence of an underpayment, the Commissioner may not rely on a taxpayer's failure to carry his or her burden of proof with respect to the underlying deficiency. Parks v. Commissioner, 94 T.C. 654">94 T.C. 654, 94 T.C. 654">660-661 (1990); Petzoldt v. Commissioner, 92 T.C. 661">92 T.C. 661, 92 T.C. 661">700 (1989). The Commissioner must prove only that an underpayment exists, and not the precise amount of such underpayment. DiLeo v. Commissioner, 96 T.C. 858">96 T.C. 858, 96 T.C. 858">873 (1991), affd. 959 F.2d 16">959 F.2d 16 (2d Cir. 1992); 92 T.C. 661">Petzoldt v. Commissioner, supra at 699-700.

The record establishes that Mr. Clinkscale2005 Tax Ct. Memo LEXIS 182">*191 and Ms. Clinkscale filed jointly tax returns that substantially understated adjusted gross income and tax for the taxable years 1994, 1995, and 1996, respectively. ⁶2005 Tax Ct. Memo LEXIS 182">*192 Indeed, Mr. Clinkscale conceded in Mr. Clinkscale's supplemental response to respondent's motion that "If the respondent is merely stating that they are owed something, then I concede." ⁷

On the instant record, we find that respondent has established by clear and convincing evidence that there was an underpayment of Mr. Clinkscale's tax for each of the taxable years 1994, 1995, and 1996.

In order to prove fraudulent intent, the Commissioner must prove by clear and convincing evidence that the taxpayer intended to evade tax, which the taxpayer believed to be owing, by conduct intended to conceal, mislead, or otherwise prevent the collection of such tax. Laurins v. Commissioner, 889 F.2d 910">889 F.2d 910, 889 F.2d 910">913 (9th Cir. 1989), affg. Norman v. Commissioner, T.C. Memo. 1987-265; 94 T.C. 654">Parks v. Commissioner, supra at 661. The existence of fraud is a question of fact to be resolved upon consideration of the entire record. 96 T.C. 858">DiLeo v. Commissioner, supra at 874; Gajewski v. Commissioner, 67 T.C. 181">67 T.C. 181, 67 T.C. 181">199 (1976), affd. without published opinion2005 Tax Ct. Memo LEXIS 182">*193 578 F.2d 1383">578 F.2d 1383 (8th Cir. 1978). Fraud is never presumed or imputed and should not be found in circumstances which create at most only a suspicion. Toussaint v. Commissioner, 743 F.2d 309">743 F.2d 309, 743 F.2d 309">312 (5th Cir. 1984), affg. T.C. Memo. 1984-25; 92 T.C. 661">Petzoldt v. Commissioner, supra at 699-700. Direct evidence of the requisite fraudulent intent is seldom available. 92 T.C. 661">Petzoldt v. Commissioner, supra at 699; Rowlee v. Commissioner, 80 T.C. 1111">80 T.C. 1111, 80 T.C. 1111">1123 (1983). Consequently, the Commissioner may prove fraud by circumstantial evidence. 743 F.2d 309">Toussaint v. Commissioner, supra at 312; 80 T.C. 1111">Rowlee v. Commissioner, supra at 1123; see Marsellus v. Commissioner, 544 F.2d 883">544 F.2d 883, 544 F.2d 883">885 (5th Cir. 1977), affg. T.C. Memo. 1975-368.

The courts have identified a number of badges of fraud from which fraudulent intent may be inferred, including (1) the understatement of income, (2) the failure to maintain adequate records as required by the Code and the regulations, (3) providing incomplete or erroneous information to a tax return preparer or bookkeeper, (4) dealing in cash, (5) acts designed to conceal income, 2005 Tax Ct. Memo LEXIS 182">*194 and (6) engaging in illegal activity. See Bradford v. Commissioner, 796 F.2d 303">796 F.2d 303, 796 F.2d 303">307-308 (9th Cir. 1986), affg. T.C. Memo. 1984-601; Ruark v. Commissioner, 449 F.2d 311">449 F.2d 311, 449 F.2d 311">312-313 (9th Cir. 1971), affg. per curiam T.C. Memo. 1969-48; 99 T.C. 202">Niedringhaus v. Commissioner, supra at 211. Although no single factor is necessarily sufficient to establish fraud, the existence of several indicia constitutes persuasive circumstantial evidence of fraud. 92 T.C. 661">Petzoldt v. Commissioner, supra at 700; see 796 F.2d 303">Bradford v. Commissioner, supra at 307.

The record establishes that, during each of the taxable years 1994, 1995, and 1996, Mr. Clinkscale (1) engaged in a criminal enterprise to distribute cocaine from which he earned substantial income; (2) conducted financial activities in currency (i.e., cash) with the intent to evade tax; (3) structured various financial activities in an attempt to avoid Federal reporting requirements with the intent to evade tax; and (4) failed to maintain complete and adequate books and accounts of income-producing activities as required by applicable provisions of the Code and the regulations2005 Tax Ct. Memo LEXIS 182">*195 thereunder. The record also establishes that, for each of the taxable years 1994, 1995, and 1996, Mr. Clinkscale provided incomplete and/or erroneous information to tax return preparers and fraudulently, with the intent to evade tax, filed a tax return that substantially understated adjusted gross income and tax.

On the instant record, we find that respondent has established by clear and convincing evidence that Mr. Clinkscale intended to evade tax for each of the taxable years 1994, 1995, and 1996, which Mr. Clinkscale believed to be owing, by conduct intended to conceal, mislead, or otherwise prevent the collection of such tax.

On the record before us, we sustain respondent's determinations that Mr. Clinkscale is liable for the fraud penalty under section 6663(a) for each of the taxable years 1994, 1995, and 1996.

We have considered all of the contentions and arguments of Mr. Clinkscale that are not discussed herein, and we find them to be without merit, irrelevant, and/or moot.

On the record before us, we shall grant respondent's motion.

To reflect the foregoing,

An order granting respondent's motion and decision for respondent will be entered.