Ferdinand Decaprio and Claire Decaprio - Page 11

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          and (b).  Respondent has the burden of proof with respect to                
          those additions to tax, which she must satisfy by clear and                 
          convincing evidence.  Sec. 7454(a); Rule 142(b).                            
               In Mr. Tigue's motion to withdraw, Mr. Tigue represented               
          that petitioner had advised him that he did not intend to settle            
          this case or to proceed to trial.  At the hearing on that motion            
          and respondent's motion, petitioner appeared and confirmed what             
          Mr. Tigue had represented in that motion when petitioner indi-              
          cated that he did not intend to settle this case or to proceed to           
          trial.  We find that, by so indicating, petitioner unequivocally            
          informed the Court that he will not contest any of the deficien-            
          cies in, or additions to, tax that remain at issue.  Such a                 
          statement by petitioner may be characterized as either an aban-             
          donment of all issues remaining in this case or a failure other-            


          4(...continued)                                                             
          each of the years 1983, 1984, and 1985, and, consequently, the              
          statute of limitations for each of those years does not bar                 
          assessment of the deficiencies in, and additions to, tax that are           
          due from petitioner for each of those years.  Sec. 6501(c)(1);              
          see DiLeo v. Commissioner, 96 T.C. 858, 880 (1991), affd. 959               
          F.2d 16 (2d Cir. 1992).                                                     
            In the answer, respondent alleged as an alternative to the                
          additions to tax for fraud that petitioner is liable for the                
          additions to tax for negligence under sec. 6653(a)(1) and (2) for           
          1983, 1984, and 1985 and under sec. 6653(a)(1)(A) and (B) for               
          1986.  Respondent had not made any such determinations in the               
          notice.  Since respondent raised the alternative additions to tax           
          for negligence by affirmative allegations in the answer and did             
          not determine them in the notice, respondent bears the burden of            
          proof as to those alternative additions to tax.  Rule 142(a).               
          Respondent's motion does not specifically request a default                 
          decision as to the alternative additions to tax for negligence,             
          and we therefore consider them to have been abandoned by respon-            
          dent.  See Rybak v. Commissioner, 91 T.C. 524, 566 (1988).                  



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