- 13 - of a corporation, partnership, or trust, satisfy the net worth requirement of 28 U.S.C. sec. 2412(d)(2)(B). Sec. 7491(a)(2). Petitioners argue that section 7491 shifts the burden of proof to respondent with respect to the underpayment of tax. Respondent argues that section 7491 does not apply because petitioners have not shown that they maintained proper records or that they cooperated with respondent during the examinations. We find that petitioners have failed to satisfy the requirements of section 7491; therefore, the burden of proof does not shift to respondent with respect to the underpayment of tax. Petitioners failed to provide adequate records and to substantiate all the unreported expenses that they now claim.12 While petitioners have the burden of proving that respondent’s deficiency determinations are erroneous, respondent bears the burden of proving, by clear and convincing evidence, that petitioners are liable for the fraud penalties. If respondent establishes that the returns in question were fraudulent with the intent to evade tax, the tax may be assessed at any time. See 6501(c)(1). 12 As noted infra pp. 19-20, we have allowed some deductions in addition to those claimed by Sam Kong Fashions on its returns. These additional corporate deductions also decrease the constructive dividends that respondent determined were received by Mr. Kong.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011