- 26 -
With respect to the case at bar, however, respondent conceded on
reply brief that the opposite burden applies here. The estate
had asserted on opening brief that the burden of proof regarding
nonvaluation issues shifted to respondent, to which contention
respondent replied as follows:
The respondent agrees that the lack of economic
substance and I.R.C. � 2036 issues are new matters
within the meaning of Tax Court Rule 142(a). As such,
the petitioner correctly states that the respondent
bears the burden of proof on these issues under Shea v.
Commissioner, 112 T.C. 183 (1999). * * * [Fn. ref.
omitted.]
For purposes of this litigation, we have accepted
respondent’s concession and have considered its role in our
analysis. Nonetheless, after reviewing all of the evidence
presented, we have found that our resolution does not depend on
which party bears the burden of proof. Both parties adduced
testimony and offered exhibits in support of their respective
positions, and the evidence so introduced was not evenly balanced
in favor of the competing alternatives. Accordingly, we have
based our conclusions upon the preponderance of the evidence
rather than upon an allocation of the burden of proof.
C. Existence of a Retained Interest
As previously indicated, section 2036 mandates inclusion in
the gross estate of transferred property with respect to which
the decedent retained, by express or implied agreement,
possession, control, enjoyment, or the right to income. The
Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: May 25, 2011