- 11 - 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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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