- 28 - shift to respondent under section 7491. We disagree. Petitioners have not shown that they satisfied the section 7491(a)(2)(A) and (B) requirements to substantiate any item, maintain all required records, and cooperate with respondent’s reasonable requests. Moreover, petitioner’s untimely assertion in their reply brief has prejudiced respondent’s ability to present evidence regarding whether petitioners satisfied the requirements of section 7491(a)(2). See Estate of Aronson v. Commissioner, T.C. Memo. 2003-189. For the foregoing reasons, we conclude that section 7491(a) does not shift the burden of proof to respondent on the issue of the reasonableness of the TMI expenses.29 Moreover, we note that we base our findings of fact on the preponderance of the evidence in the record and not upon any allocation of the burden of proof. Respondent concedes having the burden of production, pursuant to section 7491(c) with respect to Mr. Menard’s liability for the section 6662(a) accuracy-related penalty.30 II. Deductibility of Compensation Paid to Mr. Menard Section 162(a)(1) provides that a taxpayer may deduct as an ordinary and necessary business expense “a reasonable allowance 29Even if sec. 7491(a) operated to shift the burden of proof to respondent in this case, the record establishes facts sufficient to support our conclusions regarding the TMI issue accordingly. 30Sec. 7491(c) does not place the burden of production on the Commissioner when the taxpayer is a corporation.Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
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