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examination process and never supplied. Thus, petitioners have
not shown compliance with section 7491(a)(2).
Third, this Court has noted in earlier cases the potential
impropriety of shifting the burden under section 7491(a) where
the taxpayers did not raise the issue prior to the briefing
process. E.g., Menard, Inc. v. Commissioner, T.C. Memo. 2004-
207; Estate of Aronson v. Commissioner, T.C. Memo. 2003-189.
The rationale for this concern rests upon the possible prejudice
to the Commissioner’s ability to introduce evidence specifically
directed toward cooperation during the audit period. Menard,
Inc. v. Commissioner, supra; Estate of Aronson v. Commissioner,
supra.
With respect to the accuracy-related penalty, the
Commissioner satisfies the section 7491(c) burden of production
by “[coming] forward with sufficient evidence indicating that it
is appropriate to impose the relevant penalty” but “need not
introduce evidence regarding reasonable cause, substantial
authority, or similar provisions.” Higbee v. Commissioner, 116
T.C. 438, 446 (2001). Rather, “it is the taxpayer’s
responsibility to raise those issues.” Id. Because, as will be
more fully detailed infra, respondent has introduced sufficient
evidence to render the section 6662(a) penalty at least facially
applicable, the burden rests on petitioners to show why it should
not be applied.
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