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section 6654(a) for taxable year 1997. The Commissioner’s
initial burden with respect to this penalty is to come forward
with evidence that it is appropriate to apply the penalty to a
taxpayer. This obligation, however, is conditioned upon the
taxpayer’s assignment of error with respect to the Commissioner’s
penalty determination. In this case, petitioner had not assigned
error with respect to the section 6654(a) penalty. In Swain v.
Commissioner, 118 T.C. 358, 364-365 (2002), this Court held that
a taxpayer who fails to assign error to a penalty is deemed under
Rule 34(b)(4) to have conceded the penalty, notwithstanding that
the Commissioner failed to produce evidence that the imposition
of the penalty is appropriate.
As petitioner did not assign error with respect to
respondent’s application of the section 6654(a) penalty, we deem
that issue conceded. Accordingly, we conclude petitioner is
liable for the addition to tax pursuant to section 6654(a) for
taxable year 1997.
To reflect the foregoing and respondent’s concession,
Decision will be entered
for respondent, except as to
the addition to tax pursuant
to section 6651(a)(2).
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Last modified: November 10, 2007