Eugene McClelland and Ione McClelland - Page 7

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          petitioners’ timely joint petitions for redetermination of their            
          deficiencies for 1997 and 1998.  Mr. McClelland’s ability to                
          challenge Ms. McClelland’s assertion of innocent spouse relief is           
          likewise provided by this case’s status as a deficiency                     
          proceeding.  See Corson v. Commissioner, supra at 365.                      
          B.  Burden of Proof                                                         
               The taxpayer generally bears the burden of proof with                  
          certain exceptions.  Rule 142(a); Alt v. Commissioner, 119 T.C.             
          306, 311 (2002), affd. 101 Fed. Appx. 34 (6th Cir. 2004); Jonson            
          v. Commissioner, 118 T.C. 106, 113 (2002), affd. 353 F.3d 1181              
          (10th Cir. 2003); Baumann v. Commissioner, T.C. Memo. 2005-31.              
          Rule 142 presumes that the taxpayer and the Commissioner are                
          adversaries.  See, e.g., Funk v. Commissioner, 123 T.C. 213, 216            
          (2004); Barnes v. Commissioner, T.C. Memo. 2004-266.  Here, Mr.             
          McClelland, instead of the Commissioner, is opposing Ms.                    
          McClelland’s claim for innocent spouse relief.2  Additionally,              
          Ms. McClelland argues that Mr. McClelland’s opposition to her               
          request for innocent spouse relief is a new matter because he               
          signed the joint petitions in which it was asserted that she was            
          an innocent spouse as an affirmative defense and he did not                 
          timely inform Ms. McClelland before trial that he intended to               
          oppose her request.  See Rule 142(a).  We believe that a taxpayer           

               2Sec. 7491(a) is not applicable here because it is only                
          relevant in deciding whether the burden of proof shifts to the              
          respondent.                                                                 




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