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substantiate any item, has maintained all records as required by
the Code and cooperated with reasonable requests made by
respondent for witnesses, information, documents, meetings, and
interviews, and meets the net worth limitation set forth in
section 7430(c)(4)(A)(ii) if the taxpayer is a partnership,
corporation, or trust. Sec. 7491(a)(2). Additionally, section
7491(a)(3) provides that section 7491(a)(1) does not apply to any
issue with respect to which the Code provides for a specific
burden of proof.
Petitioners’ position is that section 7491(a) is applicable
in deciding whether their petition was timely filed. Respondent
argues that section 7491(a) is not applicable to this issue
because whether petitioners’ petition was timely filed is not a
factual issue relevant to the ascertainment of petitioners’ tax
liability imposed by subtitle A or B. In the alternative,
respondent argues that because the regulations prescribed by the
Secretary pursuant to section 7502(b) are legislative
regulations, section 7491(a)(3) precludes the application of
section 7491(a). Because we decide the jurisdictional issue by
the preponderance of the evidence, we need not address the
application of section 7491(a) to the instant matter. Blodgett
v. Commissioner, 394 F.3d 1030, 1039 (8th Cir. 2005), affg. T.C.
Memo. 2003-212.
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Last modified: May 25, 2011