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299 F.3d 221 (3d Cir. 2002). In fact, on the basis of our
perception of Mr. Huff as he testified, and our evaluation of his
overall testimony in the light of the record as a whole, we
reject petitioners’ argument on brief that Mr. Huff’s testimony
constitutes “credible evidence” sufficient to shift the burden of
proof to respondent under section 7491(a).
Mr. Huff during his testimony had a selective loss of
memory; for example, he could vividly recall specific facts that
supported his case but generally had no recollection as to many
other facts which could have been detrimental to his case (e.g.,
whether he filed timely his 1997 State income tax return, whether
he filed timely his 1991 through 1993 Federal income tax
returns). He also testified that he prepared petitioners’ 1997
Form 4868 immediately after he had finished preparing their 1997
Form 1040 and that he prepared the former document because he was
concerned that the latter document would not be postmarked
timely. In that the 1997 Form 1040 reports for 1997 that
petitioners’ total tax and total tax payments equal $13,340 and
$16,327, respectively, petitioners’ reporting on their 1997 Form
4868 that their total tax and total tax payments for that year
equaled $15,800 and “$15,800+”, respectively, indicates that Mr.
Huff did not readily know when he prepared the 1997 Form 4868 the
precise amount of either petitioners’ total tax or their tax
payments.
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Last modified: May 25, 2011