Jerry S. Payne - Page 15

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          Commissioner, 87 T.C. 305, 322-323 n.17 (1986); Hustead v.                  
          Commissioner, T.C. Memo. 1997-205.  “[T]he placement of the                 
          burden of proof * * * would be controlling only if, as a matter             
          of law, the evidence presented by the parties must be deemed of             
          equal weight.”  Brookfield Wire Co. v. Commissioner, 667 F.2d               
          551, 553 n.2 (1st Cir. 1981), affg. T.C. Memo. 1980-321.  As this           
          Court has stated:  “except for extraordinary burdens (e.g., in              
          fraud cases), the burden of proof is merely a ‘tie-breaker’ * * *           
          [it] is irrelevant unless the evidence is in equipoise.”  Steiner           
          v. Commissioner, T.C. Memo. 1995-122.  Although assignment of the           
          burden of proof is potentially relevant at the outset of any                
          case, where (as in this case) the Court finds that the undisputed           
          facts favor one of the parties, the case is not determined on the           
          basis of which party bore the burden of proof, and the assignment           
          of burden of proof becomes irrelevant.10                                    
               Therefore, we have no need to assign the burden of proof               
          with respect to the constructive dividend and liquidating                   
          dividend issues.                                                            

               10  The same is true where there is conflicting evidence               
          with respect to a particular item of income or expense, but a               
          preponderance of the evidence favors one of the parties.   See              
          Kean v. Commissioner, 91 T.C. 575, 601 n.40 (1988) (“Our                    
          determinations have been made on the basis of the preponderance             
          of the evidence; accordingly, it is immaterial * * * who bears              
          the burden of proof.  Deskins v. Commissioner, 87 T.C. 305, 323             
          n.17 (1986).”).                                                             

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