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motion for partial summary judgment in the Wards’ case, and a
motion for damages under section 6673(a)(1) in the Wards’ case.
Discussion
I. Rule 123(b). Dismissal
The Court may dismiss a case and enter a decision against a
taxpayer for his failure properly to prosecute or to comply with
the Rules of this Court.4 Rule 123(b). The Court may, for
similar reasons, decide against any party any issue as to which
the party has the burden of proof, and the decision shall be
treated as a dismissal. Id.
When these cases were called for trial, and in respondent’s
motions, respondent represented that he has the burden of
production regarding the penalty because the examination in these
cases began after July 22, 1998, but claimed that he does not
bear the burden of proof on any issue in these cases. Sec.
7491(a), (c); Higbee v. Commissioner, 116 T.C. 438, 440 (2001).
As a general rule, the taxpayer bears the burden of proving
the Commissioner's deficiency determinations incorrect. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Section
7491(a), however, provides that if a taxpayer introduces credible
evidence and meets certain other prerequisites, the Commissioner
shall bear the burden of proof with respect to factual issues
4 Rule 123(b) generally applies in situations where the
taxpayer bears the burden of proof.
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