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The record in this case is not explicit as to when the
underlying examination began.4 As regards the substantive
accounting issues, however, the Court finds it unnecessary to
decide whether the burden should be shifted under section
7491(a). Few facts concerning how petitioner conducted the
preneed transactions are in dispute. Given this circumstance,
the record is not evenly weighted and is more than sufficient to
render a decision on the merits based upon a preponderance of the
evidence. With respect to the penalty, because respondent on
brief assumes that section 7491(c) is applicable, the Court will
do likewise.
B. Evidentiary Motion
After the trial in this case, petitioner filed a motion for
the Court to take judicial notice of the consent judgment
rendered in Commonwealth v. Deschene-Costa, C.A. No. C03-0647
(Mass. Super. Ct. June 4, 2003). The motion is made pursuant to
rule 201 of the Federal Rules of Evidence, which provides in
relevant part as follows:
4 Presumably, because the Form 4549-A, Income Tax
Examination Changes, contained in the record covers the 1996,
1997, and 1998 years, the audit would have begun after the
September 15, 1999, date on which petitioner’s 1998 Federal
income tax return appears to have been signed by the return
preparer. The possibility exists, however, that the 1998 or even
the 1997 audit may have been added to an audit for 1996 already
in progress. Nonetheless, as explained in the text, we need not
resolve or rely on such speculation here.
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