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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...)
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