Chief Industries, Inc. and Subsidiaries - Page 14

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                                       OPINION                                        
               The Commissioner’s determinations are presumed correct, and            
          taxpayers bear the burden of proving them wrong.  Rule 142(a)(1);           
          Welch v. Helvering, 290 U.S. 111, 115 (1933).  As one exception             
          to this rule, section 7491(a) places upon the Commissioner the              
          burden of proof with respect to any factual issue relating to               
          liability for tax if the examination of the taxpayer’s records              
          for the subject year began after July 22, 1998, and the taxpayer            
          maintained adequate records, satisfied the substantiation                   
          requirements, cooperated with the Commissioner, and introduced              
          during the court proceeding credible evidence with respect to the           
          factual issue.  In that the record is sufficient for us to decide           
          this case on its merits, and neither party alleges the                      
          applicability of section 7491(a) or of any other exception, we              
          need not and do not decide the burden of proof issue.3  D’Angelo            
          v. Commissioner, T.C. Memo. 2003-295.                                       
               We decide first whether the disputed payment of $3,082,710             
          is otherwise deductible as an ordinary and necessary business               


               3 Respondent argues that petitioner has failed to establish            
          that the $3,082,710 was not paid as consideration for the                   
          redeemed stock.  We find to the contrary.  Respondent does not              
          question the fairness of the price paid for the stock in                    
          petitioner.  Presuming without conceding that the price                     
          approximated the value of the stock in petitioner, we note that             
          petitioner can pinpoint $3,082,710 as attributable to its                   
          settlement of the litigation and employment claims by subtracting           
          from the total consideration paid under the definitive agreement            
          the total consideration paid for the stock.                                 





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