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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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