Elizabeth Giles - Page 19

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          her reply brief when she opted not to object to a proposed                  
          finding in respondent’s opening brief that petitioner bears the             
          burden of proof on the basis of her counsel’s concession.  See              
          Rule 151(e)(3) (“In an answering or reply brief, the party shall            
          set forth any objections, together with the reasons therefor, to            
          any proposed findings of any other party”); see also Jonson v.              
          Commissioner, 118 T.C. 106, 108 n.4 (2002) (the failure to object           
          to a proposed finding of fact may be treated as a concession of             
          that proposed finding), affd. 353 F.3d 1181 (10th Cir. 2003);               
          Morgan v. Commissioner, T.C. Memo. 2000-231 (same), affd. 23 Fed.           
          Appx. 813 (9th Cir. 2001).  We hold on the basis of these                   
          concessions that petitioner bears the burden of proof.13                    
               Section 183, which applies to activities engaged in by                 
          individuals or S corporations, generally limits the deductions              
          for an “activity not engaged in for profit” to the amount of                
          gross income received from the activity.  Sec. 183(a) and (b).              
          Section 183(c) defines an “activity not engaged in for profit” as           
          “any activity other than one with respect to which deductions are           


               13 Even if the applicability of sec. 7491(a)(1) had been at            
          issue, we would have concluded that it did not apply.  Petitioner           
          has not in this proceeding presented “credible evidence” on the             
          substantive issue at hand.  See Higbee v. Commissioner, 116 T.C.            
          438, 442 (2001); see also Blodgett v. Commissioner,     F.3d                
          (8th Cir. Jan. 12, 2005), affg. T.C. Memo. 2003-212.  Nor has she           
          proven that she complied with the requirements of sec.                      
          7491(a)(2)(A) and (B) to substantiate items, to maintain required           
          records, and to cooperate fully with respondent’s reasonable                
          requests.  See Weaver v. Commissioner, 121 T.C. 273, 275 (2003).            





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