Hector Prowse - Page 11

                                       - 11 -                                         
                                       OPINION                                        
          I.  Burden of Proof                                                         
               Normally, in a case before this Court, the taxpayer bears              
          the burden of proof.4  Rule 142(a)(1).  However, if the                     
          Commissioner raises a new issue or seeks an increase in a                   
          deficiency, the Commissioner has the burden of proof as to the              
          new issue or increased deficiency.  Id.  In addition, in any case           
          involving the issue of fraud with intent to evade tax, the burden           
          of proof in respect of that issue is on the Commissioner.  Sec.             
          7454(a); Rule 142(b).                                                       
               In this case, the only open issues are issues as to which              
          respondent concedes he has the burden of proof.  In order to                
          satisfy that burden of proof, respondent must prove by a                    
          preponderance of the evidence that he properly disallowed                   
          petitioner’s Schedule A deductions, and he must also prove by               
          clear and convincing evidence that petitioner is liable for the             
          fraud penalty under section 6663.  Rule 142.                                
          II.  Substantiation of Schedule A Deductions                                
               A.  Medical and Dental Expenses                                        
               Section 213(a) authorizes a taxpayer, if he itemizes his               
          deductions, to deduct expenses paid during the taxable year for             

               4Although a taxpayer may contend that the burden of proof              
          should shift to the Commissioner under sec. 7491, sec. 7491 does            
          not shift the burden of proof in this case.  Respondent concedes            
          that he has the burden of proof with respect to the only open               
          issues--the increased deficiency and the fraud penalty.                     





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011