Estate of Morton B. Harper, Deceased, Michael A. Harper, Executor - Page 26

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          With respect to the case at bar, however, respondent conceded on            
          reply brief that the opposite burden applies here.  The estate              
          had asserted on opening brief that the burden of proof regarding            
          nonvaluation issues shifted to respondent, to which contention              
          respondent replied as follows:                                              
                    The respondent agrees that the lack of economic                   
               substance and I.R.C. � 2036 issues are new matters                     
               within the meaning of Tax Court Rule 142(a).  As such,                 
               the petitioner correctly states that the respondent                    
               bears the burden of proof on these issues under Shea v.                
               Commissioner, 112 T.C. 183 (1999). * * * [Fn. ref.                     
               For purposes of this litigation, we have accepted                      
          respondent’s concession and have considered its role in our                 
          analysis.  Nonetheless, after reviewing all of the evidence                 
          presented, we have found that our resolution does not depend on             
          which party bears the burden of proof.  Both parties adduced                
          testimony and offered exhibits in support of their respective               
          positions, and the evidence so introduced was not evenly balanced           
          in favor of the competing alternatives.  Accordingly, we have               
          based our conclusions upon the preponderance of the evidence                
          rather than upon an allocation of the burden of proof.                      
               C.  Existence of a Retained Interest                                   
               As previously indicated, section 2036 mandates inclusion in            
          the gross estate of transferred property with respect to which              
          the decedent retained, by express or implied agreement,                     
          possession, control, enjoyment, or the right to income.  The                

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