-170- counsel has already acknowledged this fact and, in any case, has raised this issue untimely and in contravention of our pretrial order dated August 14, 2000. As to the acknowledgment, the following colloquy occurred between the Court and the parties at the beginning of trial: THE COURT: * * * let me just make sure that the Court’s understanding that the burden of proof in this case is on the Petitioner. Is that a correct understanding? MR. SCHIFFMAN: Yes, Your Honor. THE COURT: Counsel? MS. GILBERT: Yes, Your Honor. It was only when petitioner filed its brief with the Court that it argued for the first time that the burden of proof was on respondent. Petitioner’s raising of this issue in its brief was untimely, prejudicial to respondent, and in violation of the referenced pretrial order. See Estate of Maggos v. Commissioner, T.C. Memo. 2000-129. Even if the issue as to the burden of proof was properly before the Court, the notices of deficiency were neither arbitrary nor excessive under the facts at hand, including, especially, that petitioner failed during the audit to provide to respondent adequate substantiation to support its return position. In Mitchell v. Commissioner, 416 F.2d 101 (7th Cir. 1969), affg. T.C. Memo. 1968-137, for example, a taxpayer who lacked adequate records argued that the burden of proof was onPage: Previous 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 Next
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