Harlan D. Edwards and Floors by Harlan, Jody Edwards, Trustee - Page 8

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          assertions therein.  However, unsupported statements in a brief             
          and exhibits that have not been properly admitted into evidence             
          at trial do not constitute competent evidence.  Rule 143(b);                
          Niedringhaus v. Commissioner, 99 T.C. 202, 214 n.7 (1992);                  
          Viehweg v. Commissioner, 90 T.C. 1248, 1255 (1988); Castro v.               
          Commissioner, T.C. Memo. 2001-115.  Petitioners also complain in            
          their brief that Becky was “not permitted to speak”.  The Court             
          did not permit Becky to speak on behalf of petitioners at                   
          calendar call, as she had not entered an appearance on their                
          behalf and was not herself a party.6  However, petitioners were             
          free to call Becky as a witness at the trial but failed to do so.           
          The absence of her testimony is accordingly a circumstance of               
          their own making.                                                           
          II. Burden of Proof                                                         
               Petitioners contend that, pursuant to section 7491(a), the             
          burden of proof has shifted to respondent with respect to all               
          outstanding issues.                                                         
               Generally, the burden of proof is on the taxpayer to show              
          that the Commissioner’s determinations are erroneous.  See Rule             
          142(a); Welch v. Helvering, 290 U.S. 111 (1933).  However,                  
          subject to certain limitations, section 7491(a) shifts the burden           
          of proof to the Commissioner with respect to any factual issue              

               6 Becky’s status as a party had been specifically addressed            
          before trial as a result of respondent’s motion to dismiss her as           
          a party for lack of jurisdiction, which was granted.                        





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