Harald Berrey - Page 7

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          that [sic] * * * [respondent is] waiting until * * * [the issue             
          as to the medical expense deduction] is resolved before * * *               
          [respondent will] * * * assess the tax, because otherwise * * *             
          [Ms. Berrey’s] going to end up with a much larger liability than            
          * * * [petitioner] would”.                                                  
                                     Discussion                                       
               As a general rule, the determinations of the Commissioner in           
          a notice of deficiency are presumed correct, and the taxpayer               
          bears the burden of proving the Commissioner’s determinations in            
          the notice of deficiency to be in error.  Rule 142(a); Welch v.             
          Helvering, 290 U.S. 111, 115 (1933).  As one exception to this              
          rule, section 7491(a) places upon the Commissioner the burden of            
          proof with respect to any factual issue relating to liability for           
          tax if the taxpayer maintained adequate records, satisfied the              
          substantiation requirements, cooperated with the Commissioner,              
          and introduced during the Court proceeding credible evidence with           
          respect to the factual issue.  Although neither party alleges the           
          applicability of section 7491(a), we conclude that the burden of            
          proof has not shifted to respondent with respect to the medical             
          expenses still in dispute.  Respondent has the burden of                    
          production with respect to the additions to tax, however.  Sec.             
          7491(c); Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).              









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