- 7 - There are exceptions to the general rule that the Commissioner's determination is presumed to be correct. One such exception arises in cases involving unreported income where the taxpayer challenges the notice of deficiency on the ground that it is arbitrary, and the Commissioner fails to substantiate her determination with predicate evidence. Sealy Power, Ltd. v. Commissioner, 46 F.3d 382, 386 (5th Cir. 1995), affg. in part, revg. in part, and remanding in part T.C. Memo. 1992-168; Portillo v. Commissioner, 932 F.2d at 1133.4 As indicated, petitioner moves to shift the burden of proof in the instant case based on his assertion that the notice of deficiency is arbitrary. Respondent counters that petitioner's motion should be denied, and his petition fails to state a justiciable claim for relief. We agree. Rule 34(b)(4) requires that a petition filed in this Court contain clear and concise assignments of each and every error which 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). 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. 4 An appeal in the instant case would lie in the Court of Appeals for the Fifth Circuit.Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011