William J. Cutts - Page 35

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          1991), affg. 94 T.C. 96 (1990); Drum v. Commissioner, T.C. Memo.            
          1994-433, affd. 61 F.3d 910 (9th Cir. 1995).                                
               The Commissioner has the burden of producing sufficient                
          evidence indicating it is appropriate to impose the section                 
          6662(a) penalty or addition to tax.  Sec. 7491(c);15 Higbee v.              
          Commissioner, 116 T.C. 438, 446 (2001).  Once the Commissioner              
          meets his burden of production, the taxpayer must come forward              
          with evidence sufficient to persuade a court that the                       
          Commissioner’s determination is incorrect.  Higbee v.                       
          Commissioner, supra at 447.  The taxpayer also bears the burden             
          of proof with regard to issues of reasonable cause.  Id. at 446.            
               Respondent satisfied his burden of production by introducing           
          petitioners’ 1997 returns and ATV’s ledger showing that neither             
          petitioner reported income or deductions under section 7872 as a            
          result of the debts even though petitioners concede section 7872            
          applies to the net amount of the debts.                                     
               Petitioners did not explain or justify why they did not net            
          the debts and report income under section 7872 for the 1997 tax             


               15Sec. 7491 is effective for court proceedings arising in              
          connection with examinations commencing after July 22, 1998.  See           
          Internal Revenue Service Restructuring and Reform Act of 1998,              
          Pub. L. 105-206, sec. 3001, 112 Stat. 726.  The notices are dated           
          May 22, 2001.  The parties have not informed us whether the                 
          examination commenced on or before July 22, 1998, and neither               
          party addressed this issue.  Because Mr. Cutts’s 1997 return was            
          filed on Oct. 19, 1998, and ATV’s 1997 return was filed on June             
          19, 1998, it is obvious that the examinations of petitioners’               
          returns commenced after July 22, 1998.                                      





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