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of proof as to the deficiency has not shifted to respondent in
this case.3
The first issue is whether petitioner is entitled to claim
itemized deductions on Schedule A. Respondent contends that
petitioner is not entitled to itemize deductions because his
wife, who filed separately for 1995 prior to petitioner, did not
elect to itemize. Sec. 63(e). Respondent is sustained on this
point. Under section 63(e)(1), itemization is only allowed when
the taxpayer makes an election; petitioner did not elect to
itemize on his original individual return. Moreover, a change of
election shall not be allowed unless the taxpayer’s spouse elects
consistent treatment and consents in writing to the assessment of
any deficiency arising from the change. Sec. 63(e)(3); sec.
1.63-1, Income Tax Regs. Petitioner’s spouse did not elect to
itemize deductions on her original return, nor did she consent to
itemization when petitioner amended his return. Therefore,
petitioner is not entitled to claim deductions on Schedule A.
3 Sec. 7491(a), in certain instances, places the burden
of proof on respondent with respect to examination of returns
commencing after July 22, 1998. The examination of petitioner’s
return may have commenced after July 22, 1998. However, for the
burden to be placed on the Commissioner, the taxpayer must comply
with the substantiation and record keeping requirements of the
Internal Revenue Code. Sec. 7491(a)(2)(A) and (B). In addition,
sec. 7491(a) requires that the taxpayer cooperate with reasonable
requests by the Commissioner for “witnesses, information,
documents, meetings, and interviews”. Sec. 7491(a)(2)(B). On
this record, the burden has not shifted to respondent under sec.
7491(a). Higbee v. Commissioner, 116 T.C. 438 (2001).
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