Ernest I. Korchak - Page 29

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          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 to            






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