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Discussion6
I. Excise Taxes
a. Parties’ Contentions
Respondent contends that petitioner is a disqualified person
with respect to the Plan in two capacities: (a) A fiduciary of
the Plan (sec. 4975(e)(2)(A)), and (b) the 100-percent owner of
Rollins, the employer sponsoring the Plan (subpars.(E) and (H) of
sec. 4975(e)(2)). Respondent contends that the Plan’s loans to
6 Sec. 7491, relating to burden of proof, was not drawn in
issue by either side.
However, for completeness, and in light of petitioner’s pro
se status, we note the following: Sec. 7491(a) provides for
shifting the burden of proof (if certain conditions have been
satisfied) with respect to “any factual issue relevant to
ascertaining the liability of the taxpayer for any tax imposed by
subtitle A or B”. Sec. 7491(a)(1). The sec. 4975 taxes involved
in the instant case are imposed by subtitle D; the parties have
not suggested any subtitle A or B component. Accordingly, sec.
7491(a) cannot operate to shift the burden of proof in the
instant case. See, e.g., Jos. M. Grey Pub. Acct., P.C. v.
Commissioner, 119 T.C. 121, 123, n.2 (2002), affd. 93 Fed. Appx.
473 (3d Cir. 2004).
Sec. 7491(b), relating to statistical information on
unrelated taxpayers, does not apply to the instant case.
Sec. 7491(c) imposes on respondent the burden of production
with respect to the additions to tax under sec. 6651(a)(1). The
parties’ stipulation that--“3. Petitioner did not file any
excise tax returns, Forms 5330, Return of Excise Taxes Related to
Employee Benefit Plans, for the relevant taxable periods.”
satisfies this obligation; petitioner still has the burden of
proving that the determined additions should not be imposed.
Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001). But see
supra note 2. Finally, the parties’ presentation of the instant
case fully stipulated does not change the burden of proof. Rule
122(b); Borchers v. Commissioner, 95 T.C. 82, 91 (1990), affd.
943 F.2d 22 (8th Cir. 1991).
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