- 6 - genuine issue as to any material fact and that a decision may be rendered as a matter of law." Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences will be read in a manner most favorable to the party opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). Section 6653(b) provides for the imposition of an addition to tax if any part of any underpayment of tax required to be shown on the return is due to fraud. The burden of proof with respect to fraud is upon the Commissioner to prove, by clear and convincing evidence, that some part of the underpayment of tax was due to fraud with an intent to evade tax. Sec. 7454(a); Rule 142(b); Imburgia v. Commissioner, 22 T.C. 1002 (1954). That burden can be satisfied by the Commissioner by undenied facts deemed admitted under Rule 37(c). Doncaster v. Commissioner, 77 T.C. 334 (1981); Marcus v. Commissioner, 70 T.C. 562 (1978), affd. without published opinion 621 F.2d 439 (5th Cir. 1980); Gilday v. Commissioner, 62 T.C. 260 (1974). Furthermore, if the fraud allegations are deemed admitted by motion under Rule 37(c), the Commissioner may move for judgment on the fraud issue on the basis of the facts deemed admitted pursuant to Rule 120 (JudgmentPage: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011