- 31 - C. Abuse of Discretion Issue 1. Standard of Proof The standard of review of respondent's determination under section 6038A(e)(3) is liberal. Whereas the word "discretion" does not appear in section 482, when the noncompliance penalty of section 6038A(e)(3) applies, "the amount of the deduction * * * and the cost * * * of any property * * * shall be the amount determined by the Secretary in the Secretary's sole discretion from the Secretary's own knowledge or from such information as the Secretary may obtain through testimony or otherwise." (Emphasis added.) The conference committee report offers guidance to a court reviewing respondent's determination under section 6038A(e)(3): The conferees intend that a taxpayer seeking judicial review of the exercise of the Secretary's sole discretion under the noncompliance rules shall bear the burden of proof by clear and convincing evidence that the Secretary abused that discretion. The conferees do not intend to foreclose a court from overturning a determination by the Secretary that was proven (by clear and convincing evidence) either to have been made with improper motive, or to have been clearly erroneous by reference to all reasonably credible interpretations or assumptions of facts. On the other hand, the conferees do not expect a court to overturn a determination unless it could do so even after accepting as true all allegations and inferences that may support the Secretary's position. [H. Conf. Rept. 101-386, at 594 (1989).] The conference committee report also states: Under the conference agreement, in cases of noncompliance, the amount of any deduction for any amount paid or incurred to the related party by the reporting corporation, or the cost of propertyPage: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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