Delbert L. and Margaret J. Baker - Page 41

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          provides further justification for our holding that petitioners             
          are not required to use the actuarial method.                               
          II. Burden of Proof                                                         
               We must now determine which party bears the burden of proof            
          as to the factual issues in this case.  Generally, the taxpayer             
          bears the burden of establishing the entitlement to any deduction           
          claimed.  INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);            
          New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).                
          However, in certain circumstances, if the taxpayer introduces               
          credible evidence with respect to any factual issue relevant to             
          ascertaining the proper tax liability, section 7491 places the              
          burden of proof on the Commissioner.  Sec. 7491(a)(1).  Credible            
          evidence is “‘the quality of evidence which, after critical                 
          analysis, the court would find sufficient upon which to base a              
          decision on the issue if no contrary evidence were submitted’”.             
          Higbee v. Commissioner, 116 T.C. 438, 442 (2001) (quoting H.                
          Conf. Rept. 105-599, at 240 (1998), 1998-3 C.B. 755, 994).                  
          Section 7491(a)(1) applies only if an individual taxpayer                   
          complies with substantiation requirements, maintains all required           
          records, and cooperates with reasonable requests by the                     
          Commissioner for witnesses, information, documents, meetings, and           
          interviews.  Sec. 7491(a)(2).26                                             

               26Sec. 7491 is effective with respect to court proceedings             
          arising in connection with examinations commencing after July 22,           
                                                             (continued...)           





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