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assignments of error as to which the burden is on respondent. In
the petition, all additions to tax are disputed.
When determining whether a failure to file is fraudulent
under section 6651(f), we must consider the same elements as are
considered in imposing the addition to tax for fraud under former
section 6653(b)(1) and the present section 6663. Clayton v.
Commissioner, 102 T.C. 632, 653 (1994).
But respondent has yet to file an Answer in this case and
make affirmative allegations in support of her determination as
to the addition to tax for fraudulent failure to file, and
petitioner has not had the opportunity to reply to them.
Therefore, it would be inappropriate to enter a decision for the
section 6651(f) addition. Brock v, Commissioner, 92 T.C. 1127,
1131-1132 (1989); Caplette v. Commissioner, T.C. Memo. 1993-46.
It would also be inappropriate to leave open for trial the
frivolous issues raised by petitioner in regard to the
determination of deficiencies and additions to tax other than
under section 6651(f). We shall therefore treat respondent's
motion to dismiss as a motion for partial judgment on the
pleadings. See Caplette v. Commissioner, supra. We find,
therefore, that petitioner is liable for the deficiencies in
Federal income tax and additions to tax under sections 6651(a)(1)
and 6654, as determined in the notice of deficiency.
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