Charles R. Godwin et al. - Page 35

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          examination in the instant case commenced after July 22, 1998;              
          accordingly, we consider whether respondent bears the burden of             
          proof under section 7491(a).                                                
               Section 7491(a)(1) provides that if, in any court                      
          proceeding, the taxpayer introduces credible evidence with                  
          respect to factual issues relevant to ascertaining the taxpayer’s           
          liability for a tax, the Commissioner will have the burden of               
          proof with respect to such factual issues.  The taxpayer must               
          also comply with substantiation and record-keeping requirements             
          and must cooperate with reasonable requests by the Commissioner             
          for “witnesses, information, documents, meetings, and                       
          interviews”.  See sec. 7491(a)(2)(A) and (B).                               
               The statute does not expressly provide what constitutes                
          credible evidence.  The conference committee’s report states:               
               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.                   
               [H. Conf. Rept. 105-599, at 240-241 (1998), 1998-3 C.B.                
               747, 994-995.]                                                         
          See also Higbee v. Commissioner, 116 T.C. 438, 447 (2001).                  







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