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On October 23, 1995, petitioner filed a Motion to Shift
Burden of Proof to Respondent. Relying on Portillo v.
Commissioner, 988 F.2d 27 (5th Cir. 1993), revg. and remanding
T.C. Memo. 1992-99, and Portillo v. Commissioner, 932 F.2d 1128
(5th Cir. 1991), affg. in part and revg. in part T.C. Memo.
1990-68, petitioner contends that respondent failed to provide a
factual foundation for her determination, and, therefore, the
notice of deficiency constitutes a "naked assertion". Based on
these arguments, petitioner concludes that the normal presumption
of correctness should not apply to respondent's deficiency
determination and that the burden of proof should shift to
respondent.
On November 13, 1995, respondent filed an answer to the
petition generally denying the allegations contained therein. On
the same date, respondent filed an objection to petitioner's
motion to shift the burden of proof. Respondent argues that
petitioner's motion should be denied on the ground that the
petition filed herein fails to state a justiciable claim for
relief and is based on nothing more than time-worn tax protester
arguments. In this regard, respondent maintains that, although
the petition includes an allegation that respondent erred in her
determinations, petitioner failed to allege any specific facts
regarding the correct amount of his tax liability. In the
alternative, respondent contends that petitioner's motion is
premature and that the question of the placement of the burden of
proof is a matter best resolved at trial.
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