- 9 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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