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is the mother of Gabriella. Gabriella turned 6 years old during
the year in issue. There is no support arrangement between
petitioner and Ms. Hernandez as to their daughter. During 2002,
Gabriella attended first grade at Forest Elementary School in
Queens, New York.
During 2002, petitioner earned income as an independent taxi
driver in the amount of $13,379. Petitioner reported this income
on Schedule C, Profit or Loss From Business.
Discussion
A taxpayer generally bears the burden of proving the
Commissioner’s determinations in a notice of deficiency to be in
error. Rule 142(a). In certain circumstances, however, if the
taxpayer introduces credible evidence with respect to any factual
issue relevant to ascertaining the proper tax liability, section
7491 places the burden of proof on the Commissioner. Sec.
7491(a)(1); Rule 142(a)(2). Credible evidence is “‘the quality
of evidence which, after critical analysis, * * * [a] court would
find sufficient * * * to base a decision on the issue if no
contrary evidence were submitted.’” Higbee v. Commissioner, 116
T.C. 438, 442 (2001) (quoting H. Conf. Rept. 105-599, at 240-241
(1998), 1998-3 C.B. 747, 994-995).
Filing Status
The first issue for decision is whether petitioner’s filing
status for the taxable year 2002 is married filing separately as
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