32
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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