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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
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Last modified: May 25, 2011