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issue requiring the Court to apply a settled body of case law to
essentially agreed facts.
In contrast, assignment of the burden of proof and fixing
the standard of proof have greater substantive significance with
respect to harmless error analysis. As discussed in greater
detail infra pp. 233-236, harmless error analysis ultimately
requires the Court to consider whether the Sims-McWade misconduct
affected the outcome in the trial of the test cases. Because the
assignment of the burden of proof, and particularly the standard
of proof, could influence the outcome of the Court's harmless
error analysis, we will decide the issue.
Proper placement of the burden of proof in these cases for
purposes of the evidentiary hearing is not easily resolved and
raises some perplexing questions. Rule 142(a) provides the
general rule that the burden of proof (or burden of persuasion)
will be upon the taxpayer, except as otherwise provided by
statute or determined by the Court.92 See Welch v. Helvering,
290 U.S. 111 (1933). Normally, the taxpayer bears the initial
burden of producing enough evidence to make a prima facie case;
i.e., evidence to support a finding contrary to the
Commissioner's determination. See Rockwell v. Commissioner, 512
92 Under sec. 3001 of the Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat.
726, Congress enacted new sec. 7491, which provides, effective
with respect to examinations commenced after July 22, 1998, that
the burden of proof shifts to the Commissioner when the taxpayer
produces credible evidence in opposition to the Commissioner's
determination of a deficiency and satisfies other requirements.
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