- 35 - payment were includable in petitioner’s taxable income for 1996, 1997, and 1998, respectively.17 Respondent also determined a penalty pursuant to section 6662 for all 3 years. Refund Litigation On February 14, 2002, petitioner filed a complaint in U.S. District Court seeking a refund of the Federal income taxes attributable to his including the November 1996 payment in income on his 1996 return. OPINION I. Burden of Proof The parties vigorously dispute who bears the burden of proof. Section 7491(a) places the burden of proof on the Commissioner with regard to certain factual issues if certain conditions are met. Higbee v. Commissioner, 116 T.C. 438, 440 (2001). Section 7491 applies to examinations commenced after July 22, 1998. Id. Respondent concedes that the examination of petitioner’s 1996, 1997, and 1998 tax years began after the effective date of section 7491. Section 7491(a)(2) provides that the Commissioner will bear the burden of proof with respect to an issue pursuant to section 7491(a) if: (A) the taxpayer has complied with the requirements under this title to substantiate any item; 17 Respondent also reduced petitioner’s itemized deductions for 1996, 1997, and 1998 because of the increase in petitioner’s income. This adjustment is purely computational.Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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