Pacita Palermo Reyes - Page 8

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          7491 places the burden of proof on the Commissioner.  Sec.                  
          7491(a)(1); Rule 142(a)(2).  Credible evidence is “the quality of           
          evidence which, after critical analysis, * * * [a] court would              
          find sufficient * * * to base a decision on the issue if no                 
          contrary evidence were submitted.”2  Baker v. Commissioner, 122             
          T.C. 143, 168 (2004); Higbee v. Commissioner, 116 T.C. 438, 442             
          (2001).  Section 7491(a)(1) applies only if the taxpayer complies           
          with substantiation requirements, maintains all required records,           
          and cooperates with the Commissioner for witnesses, information,            
          documents, meetings, and interviews.  Sec. 7491(a)(2).  Although            
          neither party alleges the applicability of section 7491(a), we              
          conclude that the burden of proof has not shifted to respondent             
          with respect to any of the issues in the case at bar because                
          petitioner has not complied with the requirements to substantiate           
          the items in dispute.  Therefore, petitioner bears the burden of            
          showing that she is entitled to claim dependency exemption                  
          deductions for CME and CJE, that she is entitled to head-of-                
          household filing status, that she is entitled to an earned income           
          credit for taxable year 2002, and that she is entitled to claim             
          child tax credits for CME and CJE for taxable year 2002.                    



          2We interpret the quoted language as requiring the                          
          taxpayer’s evidence pertaining to any factual issue to be                   
          evidence the Court would find sufficient upon which to base a               
          decision on the issue in favor of the taxpayer.  See Bernardo v.            
          Commissioner, T.C. Memo. 2004-199.                                          





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