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not sign a Form 8332 or any statement or waiver stating that she
was releasing her claim to the exemptions for ND and BD. In
their 2002 return, petitioners claimed exemption deductions for
David B. D’Amours, Jr., ND, and BD.
Respondent disallowed the claimed exemption deductions for
David B. D’Amours, Jr., ND, and BD. Accordingly, respondent
issued to petitioners a notice of deficiency determining a
deficiency of $3,630 in petitioners’ 2002 Federal income tax.
Discussion
In general, the Commissioner’s determination set forth in a
notice of deficiency is presumed correct. Welch v. Helvering,
290 U.S. 111, 115 (1933). In pertinent part, Rule 142(a)(1)
provides the general rule that “The burden of proof shall be
upon the petitioner”. In certain circumstances, however, if the
taxpayer introduces credible evidence with respect to any
factual issue relevant to ascertaining the proper tax liability,
section 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’”.3 Baker v.
3We 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.
(continued...)
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