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that [sic] * * * [respondent is] waiting until * * * [the issue
as to the medical expense deduction] is resolved before * * *
[respondent will] * * * assess the tax, because otherwise * * *
[Ms. Berrey’s] going to end up with a much larger liability than
* * * [petitioner] would”.
Discussion
As a general rule, the determinations of the Commissioner in
a notice of deficiency are presumed correct, and the taxpayer
bears the burden of proving the Commissioner’s determinations in
the notice of deficiency to be in error. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). As one exception to this
rule, section 7491(a) places upon the Commissioner the burden of
proof with respect to any factual issue relating to liability for
tax if the taxpayer maintained adequate records, satisfied the
substantiation requirements, cooperated with the Commissioner,
and introduced during the Court proceeding credible evidence with
respect to the factual issue. Although neither party alleges the
applicability of section 7491(a), we conclude that the burden of
proof has not shifted to respondent with respect to the medical
expenses still in dispute. Respondent has the burden of
production with respect to the additions to tax, however. Sec.
7491(c); Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).
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