- 18 -
deductions and credits at issue and their right to claim them.
See Rule 142(a).4 They have not done so here.
Asserted Loss of Records
In their reply brief, petitioners assert, for the first time
in these proceedings, that after they had provided respondent
with their only records of the Oshtemo-Kalamazoo activity,
respondent never returned them. They argue that their failure to
substantiate their right to the deductions and credits at issue
can be traced to the claimed loss of these records by respondent.
Citing Andrew Crispo Gallery, Inc. v. Commissioner, 16 F.3d 1336
(2d Cir. 1994), affg. in part, vacating and remanding in part
T.C. Memo. 1992-106, petitioners contend that, because respondent
lost their records, they are entitled to a presumption that their
records would support their contention that they had an adequate
profit motive for engaging in the Oshtemo-Kalamazoo activity.5
4 We note that recent modifications to the burden of proof
requirements in court proceedings are inapplicable here, as the
examination in this case commenced before July 22, 1998. See
sec. 7491, as added by the Internal Revenue Service Restructuring
and Reform Act of 1998 (RRA), Pub. L. 105-206, sec. 3001(a), 112
Stat. 685, 726-727; see also RRA sec. 3001(c), 112 Stat. 727.
5 Our practice is not to consider new issues raised for the
first time on reply brief. See Rules 31(a), 41(a); Krause v.
Commissioner, 99 T.C. 132, 177 (1992), affd. sub nom. Hildebrand
v. Commissioner, 28 F.3d 1024 (10th Cir. 1994); DiLeo v.
Commissioner, 96 T.C. 858, 891 (1991), affd. 959 F.2d 16 (2d Cir.
1992). In view of petitioners' pro se status and the nature of
the issue, however, we have exercised our discretion to permit
further briefing with respect to petitioners' assertion that
respondent has lost their records. In this regard, we have
decided to file and consider petitioner Abraham Weiss’ letter
that addresses arguments made in respondent's "Brief in Response
(continued...)
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: May 25, 2011