Wallace F. and Mi-Ja H. Smith - Page 8




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          (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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