- 11 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011