Elena Swain - Page 10




                                       - 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), not              






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: May 25, 2011