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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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