- 8 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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