- 17 -
shifts to the Commissioner. See id. Under the Rules of
this Court, an affirmative defense pleaded in the answer
is one of the exceptions. See Rules 142(a), 39.
An affirmative defense is described as follows:
An affirmative defense is a legal defense to a
claim, as opposed to a factual dispute as to an
essential element of the claim. It is a defense
that does not controvert the establishment of a
prima facie case, but that otherwise denies
relief to the plaintiff. It is a defense of
avoidance, rather than a defense in denial.
Thus an affirmative defense is one which seeks
to defeat or avoid the plaintiff's cause of
action, and avers that even if the petition is
true, the plaintiff cannot prevail because there
are additional facts that permit the defendant to
avoid legal responsibility. [61A Am. Jur. 2d,
Pleadings, sec. 288 (1999); fn. ref. omitted.]
One difficulty we have with the estate's argument is
that the estate does not explain what difference shifting
the burden of proof to respondent would make in these
cases. We are not aware of any facts in dispute, and the
parties ask us to decide these cases on the basis of a
motion and cross-motions for summary judgment.
We have a number of other difficulties with the
estate's position. Suffice it to say that, even if the
estate were correct that a defense based upon the lack of
substantial economic effect is an affirmative defense,
respondent does not rely on that defense in these cases.
Respondent's position is that the allocation must be
Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 NextLast modified: May 25, 2011