Paul A. Tanner, Sr. and Beverly N. Tanner - Page 8




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          liability through their lockup agreement.  Respondent contends              
          that there is no provision that allows individuals or                       
          corporations to voluntarily extend section 16(b) liability.                 
               1.   Is the Burden of Proof on Respondent?                             
               As a preliminary matter, petitioner argues that the burden             
          of proof is on respondent because respondent issued a notice of             
          deficiency based solely upon a Form 1099 issued by Polyphase,               
          rather than conduct an examination of petitioner.  Petitioner               
          argues that Portillo v. Commissioner, 932 F.2d 1128 (5th Cir.               
          1991), revg. T.C. Memo. 1990-68, and 988 F.2d 27 (5th Cir. 1993),           
          revg. T.C. Memo. 1992-99, and sections 7491(a) and 6201(d) place            
          the burden on respondent.                                                   
               We do not find that the resolution of this case depends on             
          which party has the burden of proof.  We resolve the issues on              
          the basis of a preponderance of evidence in the record.  Assuming           
          arguendo that respondent does have the burden of proof, we still            
          conclude, on the basis of evidence in the record, that petitioner           
          had $728,000 of additional income, for the reasons outlined                 
          below.                                                                      
               2.   Section 83(a)                                                     
               Section 83(a) generally provides that when property is                 
          transferred to a taxpayer in connection with the performance of             
          services, the fair market value of the property at the first time           
          the taxpayer’s rights in the property are transferable or not               






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