Tony D. Ishizaki - Page 14




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                         deficiency (or portion).  This subparagraph                  
                         shall not apply where the individual with                    
                         actual knowledge establishes that such                       
                         individual signed the return under duress.                   
          II.  Preliminary Matters                                                    
               A.  Burden of Proof                                                    
               We begin with a threshold observation regarding burden of              
          proof.  In general, the Commissioner’s determinations are                   
          presumed correct, and the taxpayer bears the burden of proving              
          otherwise.  Rule 142(a).  Although recently enacted section 7491            
          may operate in specified circumstances to place the burden on the           
          Commissioner, the statute is effective only for court proceedings           
          that arise in connection with examinations commencing after July            
          22, 1998.  RRA sec. 3001(c), 112 Stat. 727.  With respect to the            
          case at bar, the parties have stipulated that the examination of            
          Privilege House which led to the constructive dividends pertinent           
          here began on February 6, 1997, the record is bereft of any other           
          evidence that would require applicability of section 7491, and              
          petitioner has at no time so argued.  We therefore are satisfied            
          that petitioner bears the burden of establishing his entitlement            
          to relief from joint and several liability under the general                
          rules.                                                                      
               Furthermore, we pause to observe that section 7491(a)(3)               
          provides that the burden-shifting provisions referenced above do            
          not apply “to any issue if any other provision of this title                
          provides for a specific burden of proof with respect to such                





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