- 15 -
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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