Robert Griffin and Julia Griffin - Page 3

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          whether respondent had met his burden of proof.  Id. at 1021-               
          1022.  The Court of Appeals stated:                                         
                    Our application of 26 U.S.C. � 7491(a) in the                     
               present case does not resolve the merits of the                        
               deficiency issues.  On the record before us, we cannot                 
               determine whether the Commissioner has met his burden                  
               of proof.  It is not sufficient to summarily conclude                  
               that the outcome is the same regardless of who bears                   
               the burden of proof; if that were the case, � 7491(a)                  
               would have no meaning.  We therefore remand the case to                
               the tax court for further proceedings on the merits.                   
               On remand, the tax court may reconsider all of the                     
               evidence properly before it or hold a new hearing.  In                 
               either case, the tax court is instructed to make new                   
               findings of fact in light of the shifted burden of                     
               proof.  If the same conclusion is reached by the tax                   
               court without a new hearing, an explanation is                         
               warranted as to how the existing record justifies the                  
               conclusion that the Commissioner has met his burden of                 
               proof.  [Id. at 1022.]                                                 
               After the remand, we afforded the parties an opportunity for           
          a new hearing.  The parties agreed, however, that a new hearing             
          was unnecessary and requested that we reconsider the case on the            
          existing record after further briefing.                                     
                                     Background                                       
               Facts with respect to this case were found in our original             
          opinion in Griffin v. Commissioner, T.C. Memo. 2002-6.  Those               
          facts, which are not in dispute, are incorporated by this                   
          reference.                                                                  
               Petitioners owned all the stock of Griffin California                  
          Enterprises, Inc. (Griffin California), an S corporation.  In               
          turn, Griffin California held a 60-percent interest in each of              







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