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FINDINGS OF FACT3
Some facts are stipulated and are so found. The stipulation
of facts, with accompanying exhibits, is incorporated herein by
this reference.
2(...continued)
sec. 7491(a) is of no application in this case.
3 At the outset, we note that, at the conclusion of the
trial in this case, the Court set a schedule for opening and
answering briefs. Petitioner filed an opening brief but no
answering brief. Moreover, petitioner’s brief fails in certain
respects to comply with Rule 151(e), which addresses the form and
content of briefs. Rule 151(e)(3) requires that an opening brief
contain proposed findings of fact supported by references to the
pages of the transcript or the exhibits or other sources relied
on in support of the proposed findings. Petitioner’s brief
contains proposed findings of fact but no supporting references
of any kind. In the argument portion of his brief, petitioner
makes reference to Petitioner’s Exhibits 1, 2, and 3, which the
Court is unable to identify and which appear not to be part of
the record. Respondent objects to petitioner’s proposed findings
of fact in their entirety, except for petitioner’s proposed
finding No. 1, which relates to a concession made by respondent.
Because petitioner has failed to comply with Rule 151(e)(3), the
Court will disregard all but petitioner’s proposed finding of
fact No. 1. Finally, Rule 153(e)(3) also requires that, in an
answering or reply brief, the party set forth any objections,
together with the reasons therefor, to any proposed findings of
any other party. Since petitioner failed to file an answering
brief, and we have disregarded all but one of petitioner’s
proposed findings of fact, we must conclude that petitioner has
conceded respondent’s proposed findings of fact, except to the
extent that respondent has failed to direct us to any evidence in
the record supporting those proposed findings or those findings
are clearly inconsistent with evidence in the record or are
inconsistent with petitioner’s one proposed finding to which
respondent does not object. See, e.g., Jonson v. Commissioner,
118 T.C. 106, 108 n.4 (2002), affd. 353 F.3d 1181 (10th Cir.
2003).
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