Arthur R. Koskela - Page 9

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          was a pending receivership involving debtors.   The receivership            
          was the result of a civil enforcement action brought by the                 
          Securities and Exchange Commission (SEC) against Alpha Telcom in            
          2001 in the U.S. District Court for the District of Oregon.  The            
          District Court appointed a receiver in September 2001 to take               
          over the operations of Alpha Telcom and to investigate its                  
          financial condition.  On February 7, 2002, the District Court               
          held that the pay phone scheme was actually a security investment           
          and that Federal law had been violated by Alpha Telcom because              
          the program had not been registered with the SEC.  The U.S. Court           
          of Appeals for the Ninth Circuit affirmed this decision on                  
          December 5, 2003.                                                           
               Respondent disallowed the disabled access credits petitioner           
          claimed because “no business reason, to comply with the Americans           
          With Disabilities Act of 1990, has been given and verified to               
          claim the credit”.                                                          
                                     Discussion                                       
          I.   Burden of Proof                                                        
               Section 7491 is applicable to this case because the                    
          examination in connection with this action was commenced after              
          July 22, 1998, the effective date of that section.  See Internal            
          Revenue Service Restructuring and Reform Act of 1998, Pub. L.               
          105-206, sec. 3001(c)(1), 112 Stat. 727.  Under section 7491, the           
          burden of proof shifts from the taxpayer to the Commissioner if             






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