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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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