Leonard and L. Melnik Grossman - Page 2

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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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