Jerry and Patricia A. Dixon, et al. - Page 119

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          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.                                 




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