Pamela O' Rourke - Page 7

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          "at or before the hearing or a rehearing."  We may not, however,            
          determine a greater deficiency where respondent has not pleaded             
          an increased deficiency.  Moise v. Burnet, 52 F.2d 1071, 1073               
          (9th Cir. 1931), revg. 13 B.T.A. 525 (1928); Estate of Petschek             
          v. Commissioner, 81 T.C. 260, 271-272 (1983), affd. 738 F.2d 67             
          (2d Cir. 1984); Koufman v. Commissioner, 69 T.C. 473, 475-476               
          (1977).                                                                     
               In the instant case respondent has not specifically                    
          addressed the issue and has not requested an increase in the                
          addition to tax under section 6661.  In these circumstances we              
          cannot conclude that respondent has asserted a claim for the                
          increased amount as required by section 6214(a), nor that the               
          issue has been tried by consent of the parties within the meaning           
          of Rule 41(b)(1).  Thus, we shall apply the addition, if                    
          determined to be applicable, at the rate set forth in the notice            
          of deficiency.                                                              
               Section 6661(a) provides that an addition to tax is imposed            
          on any underpayment attributable to a substantial understatement            
          of income tax.  Petitioner bears the burden of proving that she             
          is not liable for this addition to tax.  Rule 142(a); King's                
          Court Mobile Home Park, Inc. v. Commissioner, 98 T.C. 511, 517              
          (1992).                                                                     
               An understatement is substantial if it exceeds the greater             
          of 10 percent of the amount required to be shown on the return              
          for the taxable year or $5,000.  Sec. 6661(b)(1).  An                       




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