DocketNumber： Docket No. 11169-79.
Filed Date： 2/17/1981
Status： Non-Precedential
Modified Date： 11/21/2020
MEMORANDUM OPINION
FAY, On September 2, 1980, respondent filed a "Motion for Order Imposing Sanctions Under Rule 104" requesting the Court to Strike the assignments of error set forth in the petition. OnOctober 8, 1980, the Court entered an order granting respondent's motion. On December 24, 1980, respondent filed a motion for summary judgment under Rule 121 with respect to both the deficiency and the addition to tax for fraud. After due*686 notice, a hearing was held on that motion on January 12,1981. At that hearing, respondent moved that the affirmative allegations contained in his answer be deemed admitted. (c) Mrs. Stephanie Franklin (nee Daniels) is the petitioners' daughter. Attached hereto as Exhibit A is a photocopy of a document entitled "Certificate of Registry of Marriage 19621" found in the files of the Los Angeles County Recorder. Said document indicates*687 that Stephanie Daniels married Clifford Ramon Franklin on May 25, 1974. (d) Stephanie Franklin filed a joint federal income tax return with her husband for taxable year 1976. (e) Stephanie Franklin did not reside with petitioners' [sic] during taxable year 1976. (f) The petitioners never had a dependent child named Craig; and did not have a dependent child named Craig living with them in 1976. (g) "Craig"is the middle name of petitioners' child Phillip Daniels, who was claimed on petitioners' 1976 federal income tax return. (h) The petitioners claimed an exemption on their 1976tax return for their daughter, Stephanie, knowing full well that she was married; that she no longer resided with them; and that she was not their dependent. * * * (i) The petitioners' [sic] claimed an exemption on their 1976 tax return for a son named "Craig", knowing full well that they had so son by that name residing with them in 1976. * * * We now address respondent's motion for summary judgment. First,we grant respondent's motion with respect to the deficiency. Each issue not addressed by a clear and concise assignment of error in the petition is deemed to be conceded. Rule*688 34(b)(4). In view of the fact that we have stricken the assignments of error in the petition, petitioners concede the correctness of respondent's deficiency determination. Accordingly, decision will be entered for respondent that there is a deficiency of $ 3,766.76 in petitioners' Federal income tax for 1976. Respondent's motion for summary judgment also extends to the section 6653(b) addition to tax for fraud. Section 6653(b) imposes an addition to tax when any part of an underpayment is due to fraud. Fraud is an intentional act of wrongdoing with the specific purpose to evade a tax believed to be owing. In this case, the affirmative allegations in respondent's answer have been deemed admitted. Thus, respondent's burden of going forward has been satisfied. ,*689 affd. without opinion ; . The facts, as deemed admitted, establish that petitioners claimed dependency exemptions for two individuals knowing that neither individual was their dependent. Based on that, we find respondent has clearly and convincingly proved fraud with the intent to evade tax. See For reasons stated above, decision will be entered for respondent with respect to both the deficiency and the addition to tax for fraud. *690
1. All section references are to the Internal Revenue Code of 1954, as amended.↩
2. All rule references are to the Tax Court Rules of Practice and Procedure.↩
3. See Rule 104(c)(1); .↩
4. Apparently, respondent was willing to base his case for summary judgment on fraud on Rule 34(b)(4) since the assignment of error in the petition relating to fraud was also stricken when sanctions were imposed. However, since the affirmative allegations in respondent's answer have been deemed admitted, a clear route to the correct result is provided by . We decline respondent's invitation to address what we consider a difficult issue. Cf. ; .↩