- 6 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011