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Respondent's motion to dismiss was called for hearing in Washington,
D.C., on August 16, 1995. Counsel for respondent appeared at the hearing and
presented argument on the pending motion. Petitioner did not appear at the
hearing; however, as previously indicated, he did file a Rule 50(c) statement.
Discussion
Rule 40 provides that a party may file a motion to dismiss for failure
to state a claim upon which relief can be granted. We may grant such a motion
when it appears beyond doubt that the party's adversary can prove no set of
facts in support of a claim that would entitle him or her to relief. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th
Cir. 1982).
Rule 34(b)(4) requires that a petition filed in this Court contain clear
and concise assignments of each and every error that the taxpayer alleges to
have been committed by the Commissioner in the determination of the deficiency
and the additions to tax in dispute. Rule 34(b)(5) further requires that the
petition contain clear and concise lettered statements of the facts on which
the taxpayer bases the assignments of error. See Jarvis v. Commissioner, 78
T.C. 646, 658 (1982). The failure of a petition to conform with the
requirements set forth in Rule 34 may be grounds for dismissal. Rules
34(a)(1); 123(b).
In general, the determinations made by the Commissioner in a notice of
deficiency are presumed to be correct, and the taxpayer bears the burden of
proving that those determinations are erroneous. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). Moreover, any issue not raised in the
pleadings is deemed to be conceded. Rule 34(b)(4); Jarvis v. Commissioner,
supra at 658 n.19; Gordon v. Commissioner, 73 T.C. 736, 739 (1980).
The petition filed in this case does not satisfy the requirements of
Rule 34(b)(4) and (5). There is neither assignment of error nor allegation of
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