Michael J. Barkley - Page 6

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               On April 22, 2002, petitioner’s petition in this case was              
          filed.4  On September 1, 2002, petitioner and Mrs. Barkley filed            
          a joint Form 1040X, Amended U.S. Individual Income Tax Return,              
          for the taxable year 1998.  On the Form 1040X, petitioner                   
          reported as gross income only half of the 1998 distribution from            
          the plan, thus reducing his taxable income by $73,746.                      
          Petitioner also reported that he owed an additional 10-percent              
          tax for early distributions, in the amount of $7,374, on only               
          one-half of the 1998 distribution.  Petitioner prepared an                  
          amended petition in this case asserting the same position with              
          respect to the 1998 distribution as that taken on his 1998                  
          amended income tax return; the amended petition was filed on                
          January 7, 2003.                                                            
          I.  Burden of Proof                                                         
               Ordinarily, a taxpayer has the burden of proving that the              
          Commissioner’s determination is in error.  Rule 142(a).  If,                
          however, a taxpayer produces credible evidence with respect to              
          any factual issue relevant to ascertaining the tax liability of             
          the taxpayer, the burden of proof shifts to the Secretary, but              
          only if the taxpayer has complied with substantiation                       

               4Petitioner’s petition was mailed on Apr. 13, 2002.                    

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