- 2 - alternative, that sec. 7491(a)(3), I.R.C., precludes the application of sec. 7491(a)(1), I.R.C., to the issue of whether Ps’ petition was timely filed because the regulations are legislative regulations that were prescribed by the Secretary pursuant to Congress’s grant of authority in sec. 7502(b), I.R.C., and because the regulations specifically place the burden of proof on Ps. Held: R’s motion to dismiss for lack of jurisdiction will be denied because the preponderance of the evidence establishes that Ps’ petition was timely filed in accordance with sec. 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs. In addition, we need not decide whether sec. 7491(a), I.R.C., is applicable to the jurisdictional issue because we decide that on the preponderance of the evidence. Melvyn Ward, for petitioners. Patricia A. Riegger, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION GOEKE, Judge: This matter is before the Court on respondent’s motion to dismiss for lack of jurisdiction. FINDINGS OF FACT Some of the facts have been stipulated and are so found. The stipulation of facts is incorporated herein by this reference. Petitioners resided in Brooklyn, New York, when their petition was filed. On January 5, 2004, respondent determined by notice of deficiency a deficiency in petitioners’ Federal income tax of $34,125 and an accuracy-related penalty under section 6662(a)1 of 1Unless otherwise indicated, all section references are to the Internal Revenue Code as amended, and all Rule references are (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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