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