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OPINION
Petitioner asserts that he timely filed his 1997 Federal
income tax return, but that it was either lost by the Internal
Revenue Service or misplaced by the U.S. Postal Service. On the
basis of this assertion, petitioner concludes that respondent
erred in the notice of deficiency in that he determined
petitioner’s tax liability for 1997 “in lieu of the timely filed
original tax return” and did not give petitioner “full credit for
any allowable deductions under Schedule C.” Petitioner did not
present at trial a copy of his 1997 income tax return that he
purportedly mailed to respondent, a proof of its mailing, or
evidence as to his entitlement to any deductions not allowed by
respondent in the notice of deficiency.
A. Burden of Proof
The parties agree that the burden of proof as to the
deficiency is on petitioner. Respondent bears the burden of
production as to the additions to tax. See sec. 7491(c). In
order to meet his burden of production, respondent must present
evidence indicating that it is appropriate to impose an addition
to tax. See Higbee v. Commissioner, 116 T.C. 438, 446 (2001).
The burden of proof remains with petitioner in that once
respondent comes forward with sufficient evidence that the
relevant penalties or additions to tax are appropriate,
petitioner must come forward with evidence sufficient to persuade
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Last modified: May 25, 2011