Hunt & Sons, Inc. - Page 8




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          (9th Cir. 2001), revg. and remanding Estate of Kaufman v.                   
          Commissioner, T.C. Memo. 1999-119.                                          
               In the case at hand, the notice of deficiency does not                 
          segregate the portion of the excess rental expense disallowance             
          attributable to each property for each year.  We are therefore              
          unable to determine, on a property-by-property basis, whether the           
          appraisals of respondent’s expert, Mr. Harris, are consistent               
          with the determinations contained in the notice of deficiency.              
               Section 7491 shifts the burden of proof to the Commissioner            
          if certain requirements are met.  However, section 7491 applies             
          only to court proceedings arising in connection with examinations           
          commenced after July 22, 1998.  RRA sec. 3001(c), 112 Stat. 727.            
          Neither party offered evidence to show whether the audit in the             
          case at hand was commenced before July 23, 1998.  However,                  
          respondent claimed in his pretrial memorandum that the audit was            
          commenced before July 23, 1998, and petitioner in its opening               
          brief appears to accept respondent’s allegation by asserting that           
          it has met its burden of proof.                                             
          Both parties introduced evidence as to the fair market                      
          rental values of the Watt Avenue, Mother Lode Drive, and Fee                
          Drive properties.  The case at hand is not one of those rare                
          cases in which the weight of the evidence adduced by the parties            
          is in equipoise.  We will therefore determine the fair market               
          rental values of these properties on the basis of the                       






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