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unfair to require the taxpayer to prove "the nonexistence of a
notice which they swear they have never seen and which respondent
is unable to provide." Pietanza v. Commissioner, supra at 736-
737.
Because these cases are not now before the Court in the
normal posture of a deficiency case, the parties agree that the
Court should disregard Rule 142(a). The parties also agree that
the Court should instead look to rule 60(b) of the Federal Rules
of Civil Procedure to determine the proper assignment of the
burden of proof, notwithstanding that the decisions in the test
cases have not become final.93 Under that rule a party may move
to be relieved from a final judgment, order, or proceeding, in
the case of fraud, misrepresentation, or other misconduct of an
adverse party. Normally, the moving party bears the burden of
producing clear and convincing evidence that relief should be
granted under that rule. See Anderson v. Cryovac, Inc., 862 F.2d
910 (1st Cir. 1988). Predictably, respondent and petitioners
each argue that the burden of proof should be imposed on the
other side.
Respondent contends that, because petitioners "now seek to
affirmatively invalidate the Court's Dixon II opinion",
petitioners bear the burden of proof as the moving parties.
93 Rule 1(a) states that, where there is no applicable rule
of procedure, "the Court or the Judge before whom the matter is
pending may prescribe the procedure, giving particular weight to
the Federal Rules of Civil Procedure to the extent that they are
suitably adaptable to govern the matter at hand."
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