Perry Funeral Home, Inc. - Page 8

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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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