Metrocorp, Inc. - Page 61




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          IV.  Conclusion                                                             
               Petitioner’s task was established by the notice and the                
          pleadings, to prove that the payments were not capital                      
          expenditures.  Respondent has not shifted the grounds on which he           
          determined the related deficiencies.  Respondent has failed to              
          persuade the majority of his view of the facts.  That, as stated,           
          does not relieve petitioner of its burden to prove facts in                 
          support of its assigned error, that respondent erred in                     
          disallowing petitioner’s deductions for the payments because they           
          were capital in nature.  Petitioner has failed to carry its                 
          burden of proof.  Therefore, we should sustain the deficiencies             
          related to the payments.                                                    
               RUWE, WHALEN, BEGHE, GALE, and MARVEL, JJ., agree with this            
          dissenting opinion.                                                         

























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