Ray W. and Marilyn S. Sowards - Page 12

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          examination of petitioners’ returns commenced after July 22,                
          1998; (2) Mr. Sowards introduced credible evidence as to all                
          contested issues; (3) he complied with all substantiation                   
          requirements; and (4) he cooperated with respondent’s reasonable            
          requests.  Respondent argues that with regard to petitioners’               
          1995 return, section 7491 is inapplicable since the examination             
          commenced prior to the effective date.  Respondent relies upon              
          Agent Daleiden’s testimony that the first contact letter was sent           
          to petitioners in April of 1998.  With respect to 1996 and 1997,            
          respondent argues that petitioners have failed to comply with the           
          requirements of section 7491(a)(2)(A) and (B).  For the reasons             
          detailed below, we find the burden of proof does not shift to               
          respondent.                                                                 
               Generally, a determination made by the Commissioner in a               
          notice of deficiency issued to the taxpayer is presumed correct,            
          and the taxpayer bears the burden of proving that determination             
          incorrect.  Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115              
          (1933).  However, section 7491(a)(1) provides that if the                   
          taxpayer introduces credible evidence with respect to any factual           
          issue relevant to ascertaining the tax liability of the taxpayer,           
          the burden of proof shifts to the Commissioner with respect to              
          that issue.  Section 7491(a) was added to the Code by the                   
          Internal Revenue Service Restructuring and Reform Act of 1998               
          (RRA 1998), Pub. L. 105-206, sec. 3001, 112 Stat. 726.                      






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