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February 21, 1997. We disagree. A Form 895 does not establish
when a taxpayer’s returns were filed; filing of a return is
established by facts showing proper delivery or mailing of a
return with the intent to file it as a return. See sec.
6091(b)(1)(A); Lucas v. Pilliod Lumber Co., 281 U.S. at 249;
Florsheim Bros. Drygoods Co. v. United States, 280 U.S. at 462;
sec. 1.6091-2(d)(1), Income Tax Regs.
Petitioner filed a motion asking that we dismiss this case
and impose sanctions on respondent under Rule 104(c). Petitioner
contends that respondent withheld the Forms 895 in bad faith and
points out that we have considerable discretion to impose
sanctions, citing Fox v. Commissioner, 718 F.2d 251 (7th Cir.
1983).
Respondent contends that the Forms 895 were provided to
petitioner several months before trial. As the moving party,
petitioner bears the burden of proof under the normal evidentiary
rule imposing proof obligations on the moving party. United
States v. Rexach, 482 F.2d 10, 16 (1st Cir. 1973); see Pietanza
v. Commissioner, 92 T.C. 729, 736 (1989), affd. without published
opinion 935 F.2d 1282 (3d Cir. 1991); S. Cal. Loan Association v.
Commissioner, 4 B.T.A. 223 (1926). Petitioner has not met the
burden of proving that respondent withheld the Forms 895 or that
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