- 82 - and persuasion on respondent, and we so hold.43 See Rockwell v. Commissioner, 512 F.2d 882, 885-887 (9th Cir. 1975), affg. T.C. Memo. 1972-133. We recognize that imposing the burden of proof on respondent may put respondent in the difficult position of having to prove a negative; i.e., that a given outcome or transaction involving the Thompsons was not a result of the Thompson settlement. In other circumstances, when a taxpayer has the burden of proving the negative of a proposition, such as proving the nonreceipt of income, the Court of Appeals for the Ninth Circuit requires the Commissioner to produce at least some substantive evidence linking the taxpayer to the income-producing activity. See Weimerskirch v. Commissioner, 596 F.2d 358, 361 (9th Cir. 1979) (respondent must offer “some foundational support” of the receipt of such income), revg. 67 T.C. 672 (1977). Accordingly, in the matter at hand, it is appropriate to require petitioners to 43Petitioners have filed a motion, as supplemented by a later motion, asking the Court to assign the burden of proof to respondent on 22 specified issues; in so doing, petitioners aver that they do not seek a general allocation of the burden of proof to respondent. Respondent has objected to these motions, quoting Kluger v. Commissioner, 83 T.C. 309, 310 n.1 (1984), for the proposition that the Court “has never, in any context, invoked such a sanction”. Our action in Dixon III in shifting the general burden of proof and persuasion to respondent in that phase of these proceedings belies respondent’s objections. We have concluded that no useful purpose would be served by addressing petitioners’ motions on an issue-by-issue basis. Suffice to say we have assigned the burden of proof and persuasion to respondent on each issue of fact that bears on the scope and terms of the Thompson settlement.Page: Previous 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 Next
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