- 11 -
engaged and the royalties so connected, no withholding would be
necessary.8 See secs. 1441(c), 1442(a) and (b), 881(a); secs.
1.1442-2, 1.1441-4, Income Tax Regs.
Initially, we deal with petitioner's position in respect of
the burden of proof without regard to the increases in
deficiencies for 1987, 1988, and 1990. In this connection, we
note that the fact that the case has been fully stipulated does
not alter the application of the burden of proof rules. Rule
122(b); Borchers v. Commissioner, 95 T.C. 82, 91 (1990), affd. on
other grounds 943 F.2d 22 (8th Cir. 1991).
In Zarin v. Commissioner, 92 T.C. 1084, 1088-1089 (1989),
revd. on other grounds 916 F.2d 110 (3d Cir. 1990), we set forth
the following frame of reference for determining what is new
matter within the meaning of Rule 142(a):
Rule 142(a) provides that the burden of proof is
on petitioner, "except that, in respect of any new
matter, increases in deficiency, and affirmative
defenses, pleaded in his answer, it shall be upon the
respondent." A new position taken by respondent is not
necessarily a "new matter" if it merely clarifies or
7(...continued)
proof on respondent in respect of the absence of income from
insurance includable under sec. 842, a reference which, under the
circumstances herein, we think is irrelevant.
8 We also note that, for purposes of this proceeding, respondent
does not contend that petitioner maintained an office or place of
business in the United States, engaged in trade or business
within the United States, or received income effectively
connected with the conduct of a trade or business within the
United States.
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