Anthony and Gloria Donnora - Page 6

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               About 3 weeks after the reply was filed, the instant case              
          was noticed for trial.  Under Rule 37(c),5 if a reply is filed,             
          then affirmative allegations in the answer that are not expressly           
          denied are deemed admitted.  About 7 weeks after the instant case           
          was noticed for trial, respondent filed a Motion for Summary                
          Judgment based on the deemed admissions.6  Petitioners filed a              
          Motion for Leave to File an Amended Reply and a response to                 
          respondent’s summary judgment motion.                                       
               Petitioners concede that Anthony is collaterally estopped              
          from denying liability for fraud additions to tax, but contend              
          that Anthony is not estopped from contesting the amounts of the             

               5    Rule 37(c) provides, in pertinent part, as follows:               
                                   RULE 37. REPLY                                     
               *     *     *     *     *     *     *                                  
                    (c) Effect of Reply or Failure Thereof:  Where a                  
               reply is filed, every affirmative allegation set out in                
               the answer and not expressly admitted or denied in the                 
               reply shall be deemed to be admitted.  Where a reply is                
               not filed, the affirmative allegations in the answer                   
               will be deemed denied unless the Commissioner, within                  
               45 days after expiration of the time for filing the                    
               reply, files a motion that specified allegations in the                
               answer be deemed admitted.  * * *                                      
               6    In this motion, respondent states that respondent                 
          determined in the notice of deficiency that there was a                     
          “substantial understatement addition to tax of $6,818.00 for the            
          tax year ended December 31, 1988.”  In the notice of deficiency             
          respondent actually determined the amount of this addition to tax           
          is $2,273, about 25 percent of the determined deficiency of                 
          $9,090.  We regard respondent’s statement on motion to be a                 
          typographical error and not a claim under sec. 6214(a) for an               
          increased deficiency or for an increased addition to tax.                   




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