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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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