David C. Wilson - Page 26

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          energy credits claimed with respect to EI and Clearwater.8  Sorey           
          has the burden of proving respondent's determinations of these              
          additions to tax erroneous.  Rule 142(a); Rybak v. Commissioner,            
          91 T.C. 524, 566 (1988).  Additionally, in a first amendment to             
          answer, respondent asserted that Wilson was liable for the                  
          addition to tax for valuation overstatement under section 6659 on           
          the underpayment of his 1981 Federal income tax attributable to             
          the investment tax credit and business energy credit claimed with           
          respect to EI and Clearwater.  Because this addition to tax was             
          raised for the first time in respondent's amendment to answer,              
          respondent bears the burden of proving that Wilson is liable for            
          the section 6659 addition to tax.  Rule 142(a); Vecchio v.                  
          Commissioner, 103 T.C. at 196.                                              
               The underlying facts of these cases with respect to this               
          issue are substantially the same as those in Fine v.                        
          Commissioner, T.C. Memo. 1995-222.  In addition, with the                   
          exception of arguments pertaining to respondent's failure to                
          waive the section 6659 additions to tax, petitioners' arguments             
          with respect to this issue are identical to the arguments made in           

          8                                                                           
               As noted, supra p. 4, on brief respondent decreased the                
          amount of the sec. 6659 addition to tax asserted with respect to            
          taxable year 1981 in docket No. 7908-89.  The amount of the 1981            
          sec. 6659 addition to tax asserted in respondent's opening brief            
          corresponds to the amount of a sec. 6659 addition to tax                    
          calculated by applying sec. 6659 only with respect to the EI                
          credits utilized on Sorey's 1981 Federal income tax return.                 
          Credits utilized on Sorey's 1981 return in the amount of $4,805             
          times 30% equals $1,442, the amount of the sec. 6659 addition to            
          tax asserted in respondent's opening brief.                                 




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