Evelyn J. Glenn - Page 9




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           penalty under section 6662(a) for negligence or intentional                
           disregard of rules or regulations.                                         
           Discussion                                                                 
                As a general rule, the burden of proof in a deficiency                
           action is on the taxpayer.  See Rule 142(a); INDOPCO, Inc. v.              
           Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290              
           U.S. 111, 115 (1933).  Effective for court proceedings arising             
           in connection with examinations commencing after July 22, 1998,            
           section 7491(a)(1) serves to shift the burden of proof to the              
           Commissioner when the taxpayer introduces credible evidence                
           with respect to a factual issue relevant to ascertaining the               
           liability of the taxpayer.  However, section 7491(a)(2) places             
           limitations on this burden-shifting rule.  Thus, section                   
           7491(a)(1) applies with respect to an issue only if (inter                 
           alia) the taxpayer has complied with all statutory and                     
           regulatory requirements to substantiate any item and the                   
           taxpayer has maintained all records required under the Internal            
           Revenue Code.  See sec. 7491(a)(2)(A) and (B).                             
                We have previously found as a fact that respondent                    
           commenced the examination of petitioner’s 1995 income tax                  
           return no later than June 1997.  Accordingly, the burden-                  
           shifting rule of section 7491(a)(1) has no application to that             
           year.  In contrast, we have found as a fact that respondent                
           commenced the examination of petitioner’s 1996 income tax                  






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