- 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 (Judgment
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011