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Respondent bears the burden of proof because the section
6661 addition to tax was first raised in respondent's answer,
rather than in the notice of deficiency. Rule 142(a).
Respondent contends that the record reflects the following facts
that satisfy her burden: (1) Petitioner knew that he would
receive tax benefits $3,000 over his total cash investment; (2)
petitioner conducted virtually no independent investigation or
evaluation of the promoter's (or its associates' or agents')
expertise or of the economic viability of the energy device; (3)
after investing, no inquiry was made as to whether an energy
device had been placed in service, even though deductions and
credits were claimed. In summary, respondent contends that the
record reflects that petitioner was motivated by tax benefits
rather than economic profit. Respondent also notes that other
taxpayers with the same or substantially similar investments in
energy devices have been found by this Court to have lacked
substantial authority for the treatment of the tax shelter items,
citing Schillinger v. Commissioner, T.C. Memo. 1990-640.
Petitioner argues that he relied on persons whom he believed
to be more knowledgeable and that such reliance was reasonable.
Petitioner references four court opinions which he believes
support his position that section 6661 should not be applied
here. Durrett v. Commissioner, 71 F.3d 515 (5th Cir. 1996),
affg. in part and revg. in part T.C. Memo. 1994-179; Vorsheck v.
Commissioner, 933 F.2d 757 (9th Cir. 1991); Heasley v.
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