-18-
anyone during a short recess. The Constitution does not mandate
that a Judge presiding over a proceeding in this Court require
that the party with the burden of proof go first at trial.
b. Burden of Proof
We need not and do not decide which party bears the burden
of proof in this case as to the nonpenalty issues. The record is
sufficient for us to decide this case on its merits based on a
preponderance of the evidence. We note, however, that we have
recently held that a notice of determination concerning worker
classification under section 7436 was valid even though it did
not name the individuals whom the Commissioner determined to be
employees. Henry Randolph Consulting v. Commissioner, 113 T.C.
250 (1999). We also note that section 7491(a), which in certain
cases shifts the burden of proof to the Commissioner, does not
apply to employment tax determinations. Sec. 7491(a)(1); Joseph
M. Grey Pub. Accountant, P.C. v. Commissioner, 119 T.C. 121, 123
n.2 (2002).
2. Jurisdiction
The parties agree that we lack jurisdiction over 1996
through 1998 because petitioner did not dispute that Ms. Odell
was its employee during those years. According to the parties,
Ms. Odell’s classification as petitioner’s employee was not in
dispute for those years because petitioner during those years
paid to her wages as evidenced by the Forms W-2. Respondent
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