- 10 -
effective date. Section 7491 is applicable here in that
examination of the estate tax return began after July 22, 1998.
With respect to the deficiency determinations in dispute,
the operative rules are contained in section 7491(a). The estate
seems to make the assertion, for the first time on reply brief,
that the burden of proof as to factual issues shifts to
respondent under the credible evidence proviso. The Court,
however, concludes a shift is not appropriate on this record for
the reasons set forth below.
First, the Court finds that the estate has failed to
introduce credible evidence with respect to the three primary
matters in contention. Credible evidence for purposes of section
7491(a) is defined as “the quality of evidence which, after
critical analysis, the court would find sufficient upon which to
base a decision on the issue if no contrary evidence were
submitted (without regard to the judicial presumption of IRS
correctness).” H. Conf. Rept. 105-599, at 240-241 (1998), 1998-3
C.B. 747, 994-995. As to inclusion of the annuities in the gross
estate and as will be explored with greater specificity below,
this matter may be decided based on a preponderance of the
evidence, without regard to burden of proof. Moreover, the
estate’s self-characterized credible testimony on this point is
in fact nebulous and cuts both ways. As to valuation of the
annuities, the estate has offered no evidence directed toward
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011