Kevin D. Castro and Margarita C. Castro, et al. - Page 14




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          the Castros’ jointly filed Form 1040 for 1996.8  In respondent’s            
          notice of deficiency to the Castros, respondent increased their             
          income by the jewelry business’ adjusted net profit and decreased           
          their income by the fiduciary fees received.                                
                                       OPINION                                        
          I.  Burden of Proof                                                         
               Petitioners contend that petitioner’s testimony was                    
          uncontroverted and credible and that, pursuant to section 7491,             
          the burden of proof has shifted to respondent.  Respondent                  
          contends that the only issue for decision is which petitioner is            
          properly taxable on the net income generated by the jewelry                 
          business and that petitioners have the burden of proof on that              
          issue.                                                                      
               Generally, the burden of proof is on the taxpayer to show              
          that the Commissioner’s determinations are erroneous.  See Rule             
          142(a).  The Internal Revenue Service Restructuring & Reform Act            
          of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 685, 726, however,           
          added section 7491, which is applicable to court proceedings                
          arising in connection with examinations commenced after July 22,            
          1998.  Under section 7491(a)(1), the burden of proof shifts to              



               8Although the parties stipulated that the Castros’ tax                 
          return for 1996 was in evidence, the exhibit attached to the                
          stipulation of facts was a copy of the Castros’ 1995 return.  Our           
          factual findings regarding the Castros’ 1996 returns are based on           
          respondent’s notice of deficiency and the Castros’ 1995 tax                 
          return.                                                                     





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