Augustin B. Jombo - Page 5




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          for the accuracy-related penalty under section 6662 because he              
          disclosed his lottery winnings on his 1996 return.                          
          B.   Burden of Proof                                                        
               Petitioner contends that respondent bears the burden of                
          proving that the NYSL winnings petitioner received in 1996 are              
          taxable income.  We disagree.                                               
               Under section 7491, the burden of proof is placed on the               
          Secretary under certain circumstances.  Section 7491 applies to             
          court proceedings arising in connection with examinations                   
          beginning after July 22, 1998.  Internal Revenue Service                    
          Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.                 
          3001(a), 112 Stat. 726.  Respondent sent a letter to petitioner             
          dated May 7, 1998, informing him that his 1996 Federal income tax           
          return had been selected for examination.  Absent any contrary              
          evidence, we treat that date as the date respondent’s examination           
          of petitioner’s 1996 tax year began.  Thus, section 7491(a) does            
          not apply, and respondent’s determination is presumed to be                 
          correct and petitioner bears the burden of proof on all issues in           
          this case.  Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115           
          (1933).                                                                     
          C.   Whether Petitioner Constructively Received All of His                  
               Lottery Winnings in 1989                                               
               Petitioner contends that the NYSL amounts that he received             
          in 1996 are not taxable in 1996 because he constructively                   
          received all of his lottery winnings in 1989.  Petitioner points            





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