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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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