David H. Saxon - Page 6

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          increase in penalty imposed for substantial understatement did              
          not violate the Ex Post Facto Clause of the U.S. Constitution),             
          affg. T.C. Memo. 1989-535; DiLeo v. Commissioner, 96 T.C. 858,              
          878 (1991) (amendment of section 6661 does not violate the Ex               
          Post Facto Clause of the U.S. Constitution), affd. 959 F.2d 16              
          (2d Cir. 1992); Lyle v. Commissioner, T.C. Memo. 1999-184                   
          (section 86 does not violate the Ex Post Facto Clause of the U.S.           
          Constitution), affd. without published opinion 218 F.3d 744(5th             
          Cir. 2002).                                                                 
               Lastly, petitioner maintains that unsubstantiated statements           
          on Forms 1099 that he received income from third parties are not            
          sufficient to support respondent’s determinations in the notice             
          of deficiency because the statements were not made under penalty            
          of perjury.3  However, when a petition does not contain a                   
          justiciable assignment of error with respect to the                         
          Commissioner’s determination, the Commissioner need not provide             
          the foundation for his determination.  See Roat v. Commissioner,            
          847 F.2d 1379, 1383 (9th Cir. 1988) (sustaining a Tax Court order           
          dismissing taxpayers’ case for failure to prosecute).  Petitioner           
          has failed to assign error in the manner required by Rule                   
          34(b)(4) and (5) with respect to any item included in the notice            
          of deficiency for 2003.  Consequently, respondent was entitled to           


               3Apparently, respondent determined petitioner’s income for             
          2003 on the basis of third-party information.                               





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