Ryan David Funk - Page 9

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               The Commissioner filed a motion for summary judgment                   
          asserting:  (1) The undisputed facts showed that the notice of              
          deficiency was mailed to the taxpayer within the 3-year period of           
          limitations, and (2) no additional assignments of error remained            
          with regard to the deficiencies and accuracy-related penalties.             
          We granted the Commissioner’s motion for summary judgment.                  
               In granting the Commissioner’s motion, we held that the                
          Commissioner was relieved of the obligation imposed under section           
          7491(c) to produce evidence in support of the accuracy-related              
          penalties determined in the notice of deficiency because the                
          taxpayer was deemed to have conceded the penalties.  Id. at 363.            
          In so holding, we looked to Rule 34(b)(4) and the requirement               
          that the taxpayer must assign error to each and every                       
          determination in a notice of deficiency, including issues with              
          respect to which the Commissioner bears the burden of proof.  Id.           
          Consistent with our order striking all frivolous allegations from           
          the petition, we concluded that the taxpayer had failed to                  
          challenge (and was deemed to have conceded) the penalties and,              
          therefore, the Commissioner was not obliged under section 7491(c)           
          to produce evidence that the penalties were appropriate.  Id. at            
          364-365.                                                                    
               Extending and applying the rationale of Swain v.                       
          Commissioner, supra, to the circumstances presented in the                  
          present case, we agree with respondent that he has no obligation            






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