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We apply the definition suggested by the legislative history.13
II. Factual Issue in This Case
We now proceed to define the factual issue in this case, for
purposes of applying section 7491, on the basis of the
circumstances and the relevant law.14
On petitioners’ joint Federal income tax return for 1996,
they excluded the $45,615 that Mr. Forste received from DHS.
Petitioners attached a statement to their return in which they
claimed that amount to be “Workmens Compensation and non-
taxable.” Section 104(a)(1) provides an exclusion from gross
income for amounts received under workers’ compensation acts as
13In a recent opinion discussing the application of sec.
7491, the Court of Appeals for the Eighth Circuit adopted this
definition of credible evidence, the same definition that was
suggested by the Commissioner and which we applied in that case:
In interpreting the term “credible evidence” in
� 7491(a)(1), we adopt the definition suggested by the
Commissioner, which is sensible, consistent with the
law’s underlying purpose, and derived from the
legislative history. [Citation omitted.] Accordingly,
we hold that “credible evidence,” for purposes of
interpreting and applying � 7491(a)(1), 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).” Brief for Appellee at 22 * * *; accord
Okerlund v. United States, 53 Fed. Cl. 341, 356 n. 23
(Fed. Cl. 2002) (adopting same definition based upon
legislative history). [Griffin v. Commissioner, 315
F.3d 1017, 1021 (8th Cir. 2003), revg. T.C. Memo. 2002-
6.]
14We do not, in this opinion, attempt to define what is a
“factual issue” in other contexts.
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