Vittorio Kellum - Page 5

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          petitioner substantiated his cost basis in the underlying                   
          investments and respondent conceded at trial that petitioner is             
          entitled to a net capital loss of $771.  In addition, petitioner            
          acknowledged receiving payments from Compton Unified School                 
          District (Compton Unified) in the neighborhood of $27,325, but              
          claims that most of these payments were received as workers’                
          compensation benefits.                                                      
               With regard to the issues for decision, we address each item           
          separately and, for convenience, we combine our findings of fact            
          and conclusions.                                                            
                                     Discussion                                       
               In general, the Commissioner’s determinations set forth in a           
          notice of deficiency are presumed correct, and the taxpayer bears           
          the burden of showing that the determinations are in error.  Rule           
          142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).  Pursuant             
          to section 7491,3 the burden of proof as to factual matters                 
          shifts to respondent under certain circumstances.  Petitioner has           
          neither alleged that section 7491(a) applies nor established his            
          compliance with the requirements of section 7491(a)(2)(A) and (B)           
          to substantiate items, maintain records, and cooperate fully with           


               3  Sec. 7491 applies to court proceedings arising in                   
          connection with examinations commencing after July 22, 1998.                
          Internal Revenue Service Restructuring and Reform Act of 1998,              
          Pub. L. 105-206, sec. 3001(c), 112 Stat. 727.  It appears that              
          the examination of petitioner’s 1997 tax return commenced after             
          the effective date of sec. 7491.                                            





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