- 9 - (the only year for which we have petitioner’s return), any other factual basis upon which to impose such penalties. The question we must decide is whether a taxpayer failing to assign error to a penalty will be deemed to concede the penalty notwithstanding that the Commissioner has failed to produce evidence that imposition of the penalty is appropriate. The question is suggested by section 7491(c) and Rule 142(a)(2). Section 7491 was enacted by section 3001(a) of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, 112 Stat. 685, 726. As so added, section 7491 is effective with respect to court proceedings arising in connection with examinations by the Commissioner commencing after July 22, 1998, the date of the enactment of RRA 1998. See RRA 1998 sec. 3001(c), 112 Stat. 727. Section 7491 is effective with respect to this court proceeding. Section 7491(c) provides: SEC. 7491(c). Penalties.–-Notwithstanding any other provision of this title, the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty, addition to tax, or additional amount imposed by this title. The Commissioner’s burden of production under section 7491(c) is to produce evidence that it is appropriate to impose the relevant penalty, addition to tax, or additional amount (without distinction, penalty). See Higbee v. Commissioner, 116 T.C. 438, 446 (2001). Unless the taxpayer puts the penalty into play, however (by assigning error to the Commissioner’s penaltyPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011