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162, with respect to which the tax payments would represent
ordinary and necessary expenses.”5 Id. Accordingly, we
concluded that petitioners had failed to carry their burden of
proof.
In Griffin v. Commissioner, 315 F.3d at 1021, the Court of
Appeals for the Eighth Circuit employed the same definition of
credible evidence that this Court had adopted from the relevant
legislative history: “‘the quality of evidence which, after
critical analysis, the court would find sufficient upon which to
base a decision on the issue if no contrary evidence were
submitted (without regard to the judicial presumption of IRS
correctness).’” Unlike this Court, however, the Court of Appeals
found that petitioners had introduced “credible evidence”,
apparently as to all relevant factual issues, so as to place the
burden of proof on respondent with respect to all factual issues.
Id. The Court of Appeals stated:
Viewing Robert Griffin’s testimony in the absence of
any evidence or presumptions to the contrary, we
conclude that appellants did produce sufficient
5 Further, we found no evidence of some of the remaining
requirements for applying the exception of Lohrke v.
Commissioner, 48 T.C. 679 (1967). For example, we found no
evidence in the record to show that the partnerships themselves
lacked the resources to satisfy the real property taxes. We also
found no credible evidence to indicate to what extent Mr.
Griffin’s failure to make the tax payments would have damaged his
reputation or creditworthiness, particularly in light of the fact
that Mr. Griffin was not personally liable for the tax payments
in question and was only secondarily and contingently liable as
guarantor of the construction loans that were secured by the
partnerships’ real properties.
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