David K. Straight - Page 32

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               1.   Whether To Shift the Burden of Proof                              
               Respondent contends that the appropriate sanction for the              
          revenue agent's conduct in this case is to shift the burden of              
          proof to respondent for 1992.  We need not consider whether to              
          shift the burden of proof because, as stated at paragraph II-D,             
          above, shifting the burden of proof to respondent would not                 
          affect the result in this case.                                             
               2.   Whether To Impose a Sanction on Respondent                        
               Respondent's agent's testimony was under oath.  See sec.               
          7456.  We do not know whether she knew that her initial denial              
          that she had changed the 30-day letter was incorrect; but even if           
          she did not know, we think she was not sufficiently mindful of              
          her obligations to the Court and counsel in this case.  The                 
          effect of her conduct was to cause petitioner to incur additional           
          litigation expenses.  As respondent concedes, the agent's conduct           
          in the instant case warrants some sanction.                                 
               Striking respondent's answer, as petitioner requests, would            
          be equivalent to defaulting respondent.  A court should consider            
          whether less drastic sanctions are more appropriate before                  
          dismissing an action.  Halaco Engg. Co. v. Costle, 843 F.2d 376,            
          381 (9th Cir. 1988).                                                        


               10(...continued)                                                       
          that petitioner did not receive a copy of the 30-day letter in              
          1993 or 1994.  See par. I-C.  Similarly, we do not accept                   
          respondent's agent's testimony about when she changed the 30-day            
          letter.                                                                     




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