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petitioner’s employment relationship with the U.S. Department of
State (the State Department) from January 1 until November 19,
1999, under two personal service contracts covering that period,
was that of a common law employee of the State Department, as
respondent asserts, or an independent contractor, as petitioner
asserts. We hold that petitioner’s relationship with the State
Department was that of an independent contractor.1
1Unless otherwise indicated, section references are to the
Internal Revenue Code Rule, and Rule references are to the Tax
Court Rules of Practice and Procedure.
In her opening brief, petitioner asserted that the burden of
proof should be shifted to respondent because the notice of
deficiency failed to adequately describe the basis for the tax
deficiency as required by sec. 7522(a). In response to an
inquiry of the Court, respondent concedes that sec. 7491(a)
applies in the present case because the examination of
petitioner’s 1999 return began after July 22, 1998, the effective
date of the statute. Respondent also concedes that petitioner
has complied with the substantiation and cooperation requirements
of sec. 7491(a)(2).
The burden of proof consists of two burdens--the burden of
production (the duty of bringing forward evidence) and the burden
of persuasion (the risk of nonpersuasion). Gerling Intl. Ins.
Co. v. Commissioner, 86 T.C. 468, 476 n.5 (1986). The initial
burden of production requires the taxpayer to introduce evidence
sufficient to establish his/her claim by a preponderance of the
evidence. Helvering v. Taylor, 293 U.S. 507, 514-515 (1935); see
also Pittman v. Commissioner, 100 F.3d 1308, 1317 (7th Cir.
1996), affg. T.C. Memo. 1995-243; Page v. Commissioner, 58 F.3d
1342, 1347-1348 (8th Cir. 1995), affg. T.C. Memo. 1993- 398.
Without regard to any burden-shifting provisions, if the taxpayer
successfully carries the initial burden of production as to a
particular adjustment, the burden of production (but not the
ultimate burden of persuasion) shifts to the Commissioner; i.e.,
the burden of introducing evidence showing an adjustment is
warranted shifts to the Commissioner. Helvering v. Taylor, supra
at 514-515; Berkery v. Commissioner, 91 T.C. 179, 186 (1988),
(continued...)
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