- 7 -
(1990).4 The actual control over the property and the enjoyment
of profits from such property are of paramount importance in
establishing ownership. Taylor v. Commissioner, 27 T.C. 361, 368
(1956), affd. 258 F.2d 89 (2d Cir. 1958).
Petitioners admitted receiving the stated distributions from
Berkeley; however, petitioners object to the pension
distribution, the defined contribution plan distribution, and the
CAP distribution being characterized as "retirement pensions" or
"retirement distributions". Petitioners contend that the
distributed amounts (over those that were included in income)
should not be included in their 1997 income for various reasons,
such as, "In 1997 the University of California -- illegally --
cancelled our life insurance (including irreplaceable term life),
cancelled my lifetime employment contract, said our savings (held
4 The Internal Revenue Service Restructuring & Reform Act
of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726, added
sec. 7491, which, under certain circumstances, places the burden
of proof on the Secretary with respect to factual issues relevant
to a taxpayer's liability for taxes and the burden of production
on the Secretary with respect to a taxpayer’s liability for
penalties and additions to tax in court proceedings arising in
connection with examinations commencing after July 22, 1998. The
examination of petitioners' return commenced after July 22, 1998.
Nevertheless, the burden of proof with respect to the items of
deficiency did not shift to respondent because petitioner did not
provide substantiation and credible evidence in connection
therewith. Higbee v. Commissioner, 116 T.C. 438 (2001).
Moreover, respondent has satisfied the burden of production with
respect to the accuracy-related penalty under sec. 6662(a).
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