- 10 - determination), the Commissioner need not produce evidence that the penalty is appropriate, since the taxpayer is deemed to have conceded the penalty. That result follows from Rule 34(b)(4), which requires the petitioner to assign error in the petition to each and every error alleged to have been committed by the Commissioner, including issues with respect to which the Commissioner bears the burden of proof. Rule 34(b)(4) warns: “Any issue not raised in the assignments of error shall be deemed to be conceded.” The situation here is analogous to the situation where the Commissioner determines a penalty (previously, an addition to tax) for fraud. Section 6663 imposes a penalty if any part of any underpayment of tax required to be shown on a return is due to fraud. Section 7454(a) and Rule 142(b) provide that, in any case involving the issue of fraud, the burden of proof in respect to that issue is on the Commissioner. The Commissioner usually determines the fraud penalty in the notice of deficiency. In Gordon v. Commissioner, 73 T.C. 736 (1980), we dealt with the predecessor addition to tax for fraud imposed by section 6653(b). We stated that, if the taxpayer wishes to contest an addition to tax for fraud determined in the notice of deficiency, he must assign error to that determination pursuant to Rule 34(b)(4). Id. at 739. Citing Rule 34(b)(4), we stated: “Any issue, including addition to tax for fraud under section 6653(b), notPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011