Santa Monica Pictures, LLC, Perry Lerner, Tax Matters Partner - Page 26

                                        -114-                                         
               In certain cases, the burden of proof shall be on the                  
          Commissioner if, in any court proceeding, the taxpayer introduces           
          credible evidence with respect to any factual issue relevant to             
          ascertaining the liability of the taxpayer for any tax imposed by           
          subtitle A or B of the Code.  Sec. 7491(a)(1).83  Nonetheless, in           
          the case of a partnership, corporation, or trust, section                   
          7491(a)(1) applies only if the taxpayer meets the net worth                 
          limitations that apply for awarding attorney’s fees pursuant to             
          section 7430; i.e., a corporation, trust, or partnership whose              
          net worth exceeds $7 million is ineligible for the benefits of              
          section 7491(a)(1).  Secs. 7491(a)(2)(C), 7430(c)(4)(A)(ii); 28             
          U.S.C. sec. 2412(d)(1)(B) and (2)(B) (as in effect on Oct. 22,              
          1986).  Petitioner has not alleged, and the record does not                 
          establish, that SMP or Corona meets these requirements.                     
          Accordingly, section 7491(a) does not apply.  See H. Conf. Rept.            
          105-599, at 240, 242 (1998), 1998-3 C.B. 747, 994, 996 (stating             
          that the taxpayer has the burden of proving it meets the                    
          requirements in sec. 7491(a)(2)).                                           
               Except for the items raised as new matter in respondent’s              
          amendment to answer, we conclude that petitioner bears the burden           


               83 Sec. 7491 was added to the Code in the Internal Revenue             
          Service Restructuring and Reform Act of 1998, Pub. L. 105-206,              
          sec. 3001, 112 Stat. 726, and is effective with respect to court            
          proceedings arising in connection with examinations commencing              
          after July 22, 1998.  The parties agree that the examination in             
          these cases commenced after July 22, 1998.                                  





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