- 29 - tax benefits. Petitioner also contends that respondent’s determination of negligence is not entitled to a presumption of correctness in this case and that petitioner, therefore, should not bear the burden of proof on the issue of negligence. 1. Petitioner’s Burden of Proof Argument Petitioner contends that because the inquiry into an individual’s negligence is highly individualized and turns on the surrounding circumstances, respondent’s determination should not be entitled to a presumption of correctness “if he has not made any inquiry into those individualized circumstances before asserting the penalty”. Petitioner also contends that respondent should bear the burden of proof on the issue. Petitioner concedes, however, that section 7491(c) does not apply to this case and that his position is not supported by caselaw. It is well established that a determination of negligence by the Commissioner is entitled to a presumption of correctness and that the burden is on the taxpayer to establish that the Commissioner’s determination is incorrect. See, e.g., Rule 142(a); Welch v. Helvering, 290 U.S. at 115; Luman v. Commissioner, 79 T.C. at 860-861; Bixby v. Commissioner, 58 T.C. at 791-792; Berry v. Commissioner, supra; Barlow v. Commissioner, T.C. Memo. 2000-339; Kowalchuk v. Commissioner, T.C. Memo. 2000- 153; Ferraro v. Commissioner, supra. Petitioner concedes that his arguments are not supported by caselaw, and he has failed toPage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
Last modified: May 25, 2011