concurring: While I concur in the result reached by the majority, I am troubled by the method used to resolve the issue of the imposition of the fraud penalty.
The majority holds that paragraphs 7(h) and 7(i) of respondent’s answer which were deemed admitted under Rule 37(c) satisfy respondent’s burden of proving petitioner’s fraudulent intent. In my view, that burden was met by the allegations of paragraphs 7(a) through 7(g) of respondent’s answer, which were similarly deemed admitted.1
I agree with the majority’s statement that nothing in Gordon v. Commissioner, 73 T.C. 736 (1980), dictates that we should require respondent to present affirmative evidence of fraud, independent of the deemed admissions. Indeed, we have used deemed admissions to find fraud on several occasions. Marcus v. Commissioner, 70 T.C. 562, 577-578 (1978), affd. in an unpublished order 621 F.2d 439 (5th Cir. 1980); Gilday v. Commissioner, 62 T.C. 260, 262 (1974). What concerns me, however, is that the majority opinion while literally professing to be consistent with the above cases, in substance runs afoul of the precedent set in those cases.
In Gilday, the taxpayer did not appear at trial and the case contesting the basic deficiency was dismissed for lack of prosecution. Respondent also moved for judgment on the fraud issue raised therein and relied on the facts deemed admitted under then Rule 18(c) (now Rule 37(c)) to satisfy his burden of proof. After reviewing the substance of respondent’s allegations,2 we held that those facts were sufficient to satisfy respondent’s burden of proof. As authority, we cited Rule 122 which provides that any case not requiring a trial for submission of evidence (as, for example, where sufficient facts have been admitted) may be submitted to the Court on the facts so established without trial. It is therefore evident to me that heretofore our procedure respecting the determination of fraud as it relates to an absent petitioner has envisioned a weighing or judging of the facts deemed admitted so as to determine whether the ultimate finding of fraud is appropriate.
At first glance, the majority herein appears to be following the guidelines set forth in Gilday. Yet the majority departs from, those guidelines by characterizing respondent’s concluso-ry statements that petitioner fraudulently omitted taxable income and that a part of the underpayment of tax was due to fraud as "more than [satisfying] the respondent’s burden of proof.”. Thus, while I believe that subparagraphs (a) through (g) of respondent’s answer provide a sufficient basis for imposition of the fraud penalty, and, accordingly, I concur in the result reached by the majority, I believe its reliance on respondent’s ultimate finding of fraud (whether characterized as an ultimate fact, the application of law to facts, or a conclusion of . law) runs counter to our holding in Gilday. In Gilday we weighed the facts deemed admitted to determine if fraud existed. In the instant case, the majority accepts respondent’s judgment that the facts necessarily establish the existence of fraud.3 By accepting respondent’s judgment without performing our independent weighing of the facts as mandated in Gilday,4 I think the majority establishes potentially dangerous precedent.
The effect of the majority’s approach on future cases is unclear. This Court, on the one hand, might, hopefully, limit today’s holding to rely on respondent’s allegation of the ultimate finding of fraud only when egregious facts such as those presented in subparagraphs (a) through (g) are also deemed admitted.5 Such a possibility is indeed authorized by Rule 37(c) which states that a motion for an order that specific allegations in the answer be deemed admitted may be granted, thus implying that the motion may be denied in whole or in part even if petitioner fails to file a reply.6 But then why not find the fraud on those egregious facts thus leaving no doubt that we retain the judgment function in our province rather than creating an impression that we have delegated our duty to respondent?7
On the other hand, the manner in which the majority holds against petitioner on the fraud issue, although couched in terms of a judgment that respondent has carried his burden of proof, could easily be construed as equivalent to a judgment of default against petitioner. Indeed, in a footnote, the majority indicates that we suggested in Gordon v. Commissioner, 73 T.C. 736, 742 (1980), that Miller-Pocahontas Coal Co. v. Commissioner, 21 B.T.A. 1360 (1931), may have been sapped of most, if not all, of its vitality. In the latter case it was held that where the taxpayer did not appear at trial, the fraud penalty could nq,t be included in the Court’s order of dismissal without an affirmative offering of proof by the Government. Coupling the majority’s statement concerning the vitality of Miller-Pocahontas Coal Co. with its acceptance of respondent’s ultimate finding of fact, my concern is that the majority opinion might be interpreted to mean that fraud may be found where a taxpayer does not appear, even without any affirmative proof of fraud. This would be tantamount to default.
I am not convinced that Gordon announced the demise of Miller-Pocahontas Coal Co. While we questioned its continued vitality in light of the then-recently adopted Rule 123(a) and case law that developed under rule 55, Federal Rules of Civil Procedure, we stated only that "it may be arguable” that Rule 123(a) and case law would permit default on the fraud issue. Furthermore, we added a footnote of warning in Gordon8 that, if we-were to enter a default decision on the fraud issue, it could lead to an increased and indiscriminate use of the fraud penalty by respondent.
My concern is that the majority opinion may sap Miller-Pocahontas Coal Co. and other cases (Marcus v. Commissioner, supra; Gilday v. Commissioner, supra) which required affirmative proof of fraud. Such a result is undesirable in view of the ease with which respondent could then impose the fraud penalty on inattentive but innocent taxpayers.
In summary, I agree with the majority that the fraud penalty should be imposed herein. However, that holding should .be based on our finding of fraud after weighing the deemed admitted facts contained in paragraphs 7(a) through 7(g) of respondent’s answer. I oppose the majority’s acceptance of respondent’s finding of an ultimate fact as evidence sufficient to carry his burden of proof. Such acceptance is tantamount to an abdication of the decision-making role of this Court.
Sterrett, J., agrees with this concurring opinion.Thus, in my opinion, even if the Court had denied respondent’s Rule 37(c) motion as to pars. 7(h) and 7(i) on the ground that they are ultimate facts or conclusions of law, the imposition of the fraud penalty would still be appropriate because the fraudulent intent can be inferred from the deemed admitted facts contained in pars. 7(a) through 7(g).
The deemed admitted facts in Gilday v. Commissioner, 62 T.C. 260, 262 (1974), were that petitioner claimed dependency exemptions for four children for whom he did not supply more than 50 percent of their support, that he gave a false address on his income tax return, that he erroneously claimed an exemption for his estranged wife, and that he forged his wife’s signature on a purported joint return.
In a technical sense, it might be argued that the majority has weighed the evidence before it by considering subpars. (h) and (i) and then declaring that respondent has satisfied his burden of proof on the fraud issue. But clearly, this is sleight of hand as in essence the majority, by stating that it accepts subpars. (h) and (i), in effect finds fraud because respondent has so found in his ultimate allegation of fraud (which is a routine part of respondent’s pleadings in fraud cases and Rule 37(c) motions).
Although the majority adds a caveat stating that the facts contained in subpars. (a) through (g) are also "of importance” because they prove the facts necessary to show an underpayment, this also is illusion as subpars. (h) and (i) conclude both that an underpayment exists and that there was a fraudulent intent. Therefore, subpars. (a) through (g) are rendered superfluous.
Rule 36(b) requires that respondent’s answer include the facts supporting the assertion of fraud. Thus, if a Rule 37(c) motion were to follow, we would always be presented with factual allegations deemed admitted in addition to the ultimate fraud allegation. The question then posed would be whether those supporting facts, alone, were sufficient for us to reach the ultimate finding of fraud.
However, if today’s holding also extends to requests for admission under Rule 90, the protection provided a petitioner by the Court’s participation will not exist. Under Rule 90, a matter is deemed admitted unless the party to whom the request is directed answers the request for admission or objects to it. No motion is required as "a party’s failure to respond to a request will result automatically in the admission of the statements in the request without the necessity of a confirming order.” Freedson v. Commissioner, 65 T.C. 333, 335-336 (1975), affd. 565 F.2d 954 (5th Cir. 1978).
It is unclear whether the majority would have found fraud solely from pars. 7(a) through 7(g). As I have stated, I would have inferred a fraudulent intent from those deemed admitted facts. If the majority would not have so found, then the fraud penalty should not have been imposed.
73 T.C. at 742 n. 8.