Estate of Jerry Weiss, Deceased, Naomi Weiss, Executor, and Naomi Weiss - Page 7

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          delegation of the burden of proof to the taxpayer.  Under Rule              
          142(a)(1), the burden of proof is on the Commissioner with                  
          respect to any new matter, increase in deficiency, or any                   
          affirmative defenses.  None of these exceptions apply here.                 
               In 1998, Congress passed the Internal Revenue Service                  
          Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206,           
          112 Stat. 685.  Under RRA 1998, sec. 3001, 112 Stat. 726-727, the           
          burden of proof is reallocated to the IRS when the taxpayer meets           
          certain substantiation and record keeping requirements.  However,           
          section 7491 is effective only for court proceedings arising in             
          connection with examinations beginning after July 22, 1998.  RRA            
          1998 sec. 3001(a), 112 Stat. 726.  Therefore, section 7491 does             
          not apply to this proceeding.4                                              
               The estate cites a line of authority where courts use common           
          law principles to shift the burden of proof in cases where the              
          Commissioner’s determination is arbitrary, lacks a factual basis,           
          or is without rational purpose.  See, e.g., United States v.                
          Janis, 428 U.S. 433, 440 (1976); Helvering v. Taylor, 293 U.S.              
          507, 514 (1935); Jackson v. Commissioner, 73 T.C. 394, 403-405              
          (1979).  However, none of those situations are present here.  The           
          estate is not challenging the substance of the determination or             

               4The estate has cited legislative history from the enactment           
          of sec. 7491 to support its position; however, given that the               
          statute itself is not applicable, it follows that any legislative           
          history argument derived from it is equally inapplicable                    
          authority.                                                                  




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