David B. and Sharon J. D'Amours - Page 7

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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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