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question during posttrial briefing. If the estate is allowed to
raise the burden of proof question at this juncture, respondent
contends that he will be subjected to surprise and prejudice.
See Seligman v. Commissioner, 84 T.C. 191, 198-199 (1985), affd.
796 F.2d 116 (5th Cir. 1986). Respondent also points out that he
has not been afforded the opportunity to present evidence to
counter the estate’s unproven allegations that it has met the
statutory requirements. See Ware v. Commissioner, 92 T.C. 1267,
1268 (1989), affd. 906 F.2d 62 (2d Cir. 1990).
We agree with respondent that the estate’s attempt to raise
this matter in a posttrial brief constitutes surprise and is
therefore untimely.
In addition, section 7491(a), as a prerequisite to the
shifting of the burden of proof, requires the taxpayer to provide
credible evidence. Section 7491 does not define the term
“credible evidence”. The legislative history underlying the
enactment of section 7491 contains the explanation that
Credible evidence is the quality of evidence which,
after critical analysis, the court would find
sufficient upon which to base a decision on the issue
if no contrary evidence were submitted (without regard
to the judicial presumption of IRS correctness). A
taxpayer has not produced credible evidence for these
purposes if the taxpayer merely makes implausible
factual assertions, frivolous claims, or tax protestor-
type arguments. The introduction of evidence will not
meet this standard if the court is not convinced that
it is worthy of belief. If after evidence from both
sides, the court believes that the evidence is equally
balanced, the court shall find that the Secretary has
not sustained his burden of proof.
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