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OPINION
I. Burden of Proof
As a general rule, determinations by the Commissioner are
presumed correct, and the taxpayer bears the burden of proving
otherwise. Rule 142(a). Section 7491 may operate, however, in
specified circumstances to place the burden on the Commissioner.
Section 7491 is applicable to court proceedings that arise in
connection with examinations commencing after July 22, 1998, and
reads in pertinent part:
SEC. 7491. BURDEN OF PROOF.
(a) Burden Shifts Where Taxpayer Produces Credible
Evidence.--
(1) General rule.--If, in any court
proceeding, a taxpayer introduces credible
evidence with respect to any factual issue
relevant to ascertaining the liability of the
taxpayer for any tax imposed by subtitle A or B,
the Secretary shall have the burden of proof with
respect to such issue.
(2) Limitations.--Paragraph (1) shall apply
with respect to an issue only if--
(A) the taxpayer has complied with the
requirements under this title to substantiate
any item;
(B) the taxpayer has maintained all
records required under this title and has
cooperated with reasonable requests by the
Secretary for witnesses, information,
documents, meetings, and interviews; * * *
* * * * * * *
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Last modified: May 25, 2011