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Discussion
The stipulation proposed by respondent, the motion for order
to show cause, the order to show cause, and the order deeming
facts stipulated for purposes of this case were all consistent
with Rule 91. The statements made in the stipulation and the
documents attached to it were all matters “which fairly should
not be in dispute.” Rule 91(a). Petitioner did not raise at any
time a dispute as to the factual accuracy of the stipulation.
His objections relate solely to his erroneous theory about
respondent’s burden of proof and his Fifth Amendment privilege.
Petitioner’s assertion that respondent has the burden of
proof is not a sufficient objection to a proposed stipulation.
Rule 91(a) specifically states that “The requirement of
stipulation applies under this Rule without regard to where the
burden of proof may lie with respect to the matters involved.”
See, e.g., Console v. Commissioner, T.C. Memo. 2001-232.
Petitioner’s argument that Rule 91(f) could not be applied
without violating his Fifth Amendment privilege must be rejected.
The phrase that comes readily to mind was first used by the U.S.
Supreme Court in United States v. Sullivan, 274 U.S. 259, 264
(1927), to wit, a taxpayer may not “draw a conjurer’s circle
around the whole matter” of his or her tax liability. See also
Steinbrecher v. Commissioner, 712 F.2d 195, 198 (5th Cir. 1983),
affg. T.C. Memo. 1983-12; McCoy v. Commissioner, 696 F.2d 1234
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