- 30 - determined by the Court, the burden of proof is on the taxpayer. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).10 The burden of proof is on the Commissioner, however, in respect of any new matter not raised in the notice of deficiency, increases in deficiency, and affirmative defenses raised by the Commissioner in an answer. Rule 142(a). A notice of deficiency must “describe the basis” for the tax deficiency. Sec. 7522. In some situations, failure to describe the basis for the tax deficiency in the notice of deficiency results in a new matter being raised under Rule 142(a). Shea v. Commissioner, 112 T.C. 183, 197 (1999); Wayne Bolt & Nut Co. v. Commissioner, 93 T.C. 500, 507 (1989); Estate of Ballantyne v. Commissioner, T.C. Memo. 2002-160. A new matter is raised when the basis or theory on which the Commissioner relies is not stated or described in the notice of deficiency and the new theory or basis requires the presentation of different evidence. Wayne Bolt & Nut Co. v. Commissioner, supra at 507. In such situation, the burden of proof is placed on the Commissioner with respect to that issue. Id. 10 In certain circumstances, if the taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the proper tax liability, sec. 7491 places the burden of proof on the Commissioner. Sec. 7491(a); Rule 142(a)(2). Decedent’s estate does not contend that sec. 7491 applies in this case.Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
Last modified: May 25, 2011