Elena Swain - Page 11




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          raised in the assignment of errors is deemed conceded by the                
          petitioner.”  Id.  We added:  “If petitioner assigns error to               
          respondent’s determination of the fraud addition to tax, then the           
          respondent must affirmatively plead the fraud, together with the            
          facts in support thereof, in his answer.  Rule 36(b).”  Id.  We             
          held, however, that if the Commissioner pleads fraud in the                 
          answer, and the taxpayer, in the reply, denies the allegations of           
          fraud, the Commissioner will not be put to his proof if the                 
          taxpayer thereafter states that he will not contest the fraud               
          addition and defaults.  Id.  Implicit in our discussion of Rule             
          34(b) is the conclusion that, if the Commissioner determines                
          fraud and the taxpayer fails to assign error to that                        
          determination, the fraud penalty is conceded, and the                       
          Commissioner need not plead fraud together with supporting facts.           
          See Brailsford v. Commissioner, T.C. Memo. 1991-639 (with respect           
          to whether statute of limitations remained open against joint-              
          return-filer on account of other joint-return-filer’s fraud:                
          “Respondent had no duty to discuss or prove an issue that                   
          petitioner had not raised, either directly (an assignment of                
          error as to the fraud determination) or indirectly (pleading the            
          statute of limitations).”).                                                 
               Section 7491(c) imposes a burden on the Commissioner “in any           
          court proceeding with respect to the liability of any individual            
          for any penalty”.  Rule 34(b)(4) and the statute are consistent.            






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