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This matter was called for hearing at the Court's motions
session in Washington, D.C. Counsel for respondent appeared at
the hearing and argued in support of the pending motion. In
particular, respondent cited a case recently decided by the Court
of Appeals for the Fifth Circuit, Parker v. Commissioner, 117
F.3d 785 (5th Cir. 1997), for the proposition that petitioner's
contentions respecting the presumption of correctness and burden
of proof do not state a claim for relief.
Discussion
Rule 34(b)(4) requires that a petition filed in this Court
shall 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 shall 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.
Commissioner, 73 T.C. 736, 739 (1980). Further, the failure of a
party to plead or otherwise proceed as provided in the Court's
Rules may be grounds for the Court to hold such party in default,
either on the motion of another party or on the initiative of the
Court. Rule 123(a).
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Last modified: May 25, 2011