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that the Court shift the burden of proof to respondent with
respect to the amount of the credit. In this regard, petitioner
refers us to Rule 142(a) and suggests that we use our discretion
to shift the burden to respondent. Petitioner does not provide a
specific reason for our shifting the burden to respondent;
petitioner only argues that it would be appropriate.
Rule 142(a) generally places the burden of proof on
petitioner except as provided by statute or determined by the
Court. In that regard, under Rule 142(a), the burden is shifted
to respondent “in respect of any new matter, increases in
deficiency, and affirmative defenses”. In addition, this Court
has authority to sanction a party in appropriate circumstances,
including shifting of the burden of proof. See Rule 104.
Shifting the burden of proof, in particular, has been described
as a relatively harsh sanction. See, e.g., Estate of Spear v.
Commissioner, 41 F.3d 103 (3d Cir. 1994), vacating and remanding
T.C. Memo. 1993-213.
“The assertion of a new theory which merely clarifies or
develops the original determination without being inconsistent or
increasing the amount of the deficiency is not a new matter
requiring shifting of the burden of proof.” Achiro v.
Commissioner, 77 T.C. 881, 890 (1981) (and cases cited therein);
see also Seagate Tech., Inc., & Consol. Subs. v. Commissioner,
102 T.C. 149, 169 (1994).
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