Robert C. Davis, Jr. - Page 14

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          burden of proof with respect to such factual issues shifts to               
          respondent under section 7491(a)(1).                                        
               Respondent counters that petitioner has not introduced                 
          credible evidence concerning the factual issues presented under             
          section 165 and that he has not complied with the applicable                
          requirements of section 7491(a)(2).                                         
               Credible evidence is evidence which, after critical analy-             
          sis, the Court would find sufficient upon which to base a deci-             
          sion 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).  Evidence            
          is not credible if the Court is not convinced that such evidence            
          is worthy of belief.  Id.                                                   
               Petitioner relies on his testimony with respect to the                 
          factual issues presented under section 165.  As discussed below,            
          we found petitioner’s testimony regarding the time of his discov-           


               4(...continued)                                                        
          7491(a) with respect to the addition to tax under that section.             
          Petitioner does not contend that he introduced credible evidence            
          concerning the factual issues presented under sec. 6654(a) and              
          that the burden of proof shifts to respondent under sec. 7491(a)            
          with respect to the addition to tax under that section.  Even if            
          petitioner were to advance such contentions with respect to sec.            
          6654(a), we would reject them, just as we reject petitioner’s               
          contention that the burden of proof with respect to the factual             
          issue presented under sec. 6651(a)(1) shifts to respondent under            
          sec. 7491(a).  That is because sec. 7491(a) does not apply to               
          additions to tax and penalties under subtitle F of the Internal             
          Revenue Code.  Higbee v. Commissioner, 116 T.C. 438, 447 n.6                
          (2001).                                                                     




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