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conduct an in camera investigation before rejecting his Fifth
Amendment claim. Petitioner declined to testify at trial, and
the Court did not order him to testify. Because this is neither
a criminal proceeding nor a contempt proceeding and no direct
sanction was imposed against petitioner as a result of his
refusal to testify, the cases on which he relies are not in
point. See, e.g., United States v. Drollinger, 80 F.3d 389, 392
(9th Cir. 1996); United States v. Bodwell, 66 F.3d 1000, 1001
(9th Cir. 1995); United States v. Neff, 615 F.2d 1235, 1240 (9th
Cir. 1980); United States v. Pierce, 561 F.2d 735, 741 (9th Cir.
1977).
The documentary and testimonial evidence presented by
respondent satisfied respondent’s burden to connect petitioner to
the income determined in the statutory notice. See Johnston v.
Commissioner, T.C. Memo. 2000-315 (and cases cited therein). He
did not present credible evidence that would affect the burden of
proof under section 7491(a). In addition, the evidence presented
by respondent satisfied respondent’s burden of production with
respect to the penalties. See sec. 7491(c); Higbee v.
Commissioner, 116 T.C. 438, 446-449 (2001). The burden is on
petitioner to prove that respondent’s determinations are
erroneous. He cannot avoid that burden by claiming the Fifth
Amendment privilege and attempting to convert “the shield * * *
which it was intended to be into a sword”. United States v.
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