Michael J. Barkley - Page 7

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          requirements, maintained all required records, and cooperated               
          with reasonable requests by the Secretary for witnesses,                    
          information, documents, meetings, and interviews.  Sec. 7491(a).5           
          Petitioner does not contend that section 7491(a) applies to                 
          this case.  In addition, petitioner has not established that the            
          requirements of section 7491(a)(2) have been satisfied.                     
          Consequently, we hold that petitioner has the burden of proof as            
          to any disputed factual issue.  See Rule 142(a).                            
               Although section 7491(c) does not alter the general burden             
          of proof rule established by section 7491(a), it does require the           
          Commissioner to assume the burden of production with respect to             
          penalties and additions to tax.6  Respondent has the burden of              
          production with respect to the addition to tax under section                
          6651(a)(1).  If respondent introduces sufficient credible                   
          evidence to show that petitioner is liable for the section                  
          6651(a)(1) addition to tax, then petitioner has the burden of               
          proving that he is not liable for the addition to tax.  See                 
          Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).                       

               5Sec. 7491(a) generally applies to court proceedings arising           
          in connection with examinations commencing after July 22, 1998.             
          Internal Revenue Service Restructuring & Reform Act of 1998, Pub.           
          L. 105-206, sec. 3001(a), 112 Stat. 726.                                    
               6Sec. 7491(c) provides that “Notwithstanding any other                 
          provision of this title, the Secretary shall have the burden of             
          production in any court proceeding with respect to the liability            
          of any individual for any penalty, addition to tax, or additional           
          amount imposed by this title.”                                              

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