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Respondent sent a letter to petitioner scheduling an Appeals
Office conference. Petitioner did not appear at the conference
and failed to contact the officer before the date of the
conference.
Discussion
Section 7491(a)(1)2 provides that the burden of proof may,
under certain conditions, shift to the Commissioner. Because
petitioner failed to meet the requirements of section 7491(a)(2),
the burden of proof does not shift to respondent.
Petitioner's objections to respondent's adjustments are
those typical of so-called tax protesters. In his trial
memorandum, petitioner relies on Brushaber v. Union Pac. R.R.,
240 U.S. 1, 19 (1916), to support his propositions that the
Sixteenth Amendment did not give the Federal Government any new
taxing powers and that income tax is actually an excise tax,
which can only be assessed against those who are licensed or
incorporated. However, petitioner's argument is baseless.
In Brushaber, the Court found the 1913 income tax law
to be constitutional. The Court also noted that in
Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601
(1895) it had previously found the taxing of income
from professions, trades, employments or vocations to
be constitutional in the form of an excise tax. In
light of the [S]ixteenth [A]mendment, however, all
2Sec. 7491 is effective with respect to court proceedings
arising in connection with examinations by the Commissioner
commencing after July 22, 1998, the date of its enactment by sec.
3001(a) of the Internal Revenue Service Restructuring and Reform
Act of 1998, Pub. L. 105-206, 112 Stat. 726.
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