Estate of Helen A. Deputy, Deceased, William J. Deputy, Co-Executor - Page 9

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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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