Samie M. and Nora L. Finch - Page 6

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          respondent consists of:  (1) A disallowed net medical deduction             
          of $219; (2) disallowed total gifts to charity of $5,640; and (3)           
          disallowed net limited miscellaneous itemized deductions of                 
          $28,188.                                                                    
                                     Discussion                                       
               In general, the Commissioner’s determination 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’”.5  Baker v. Commissioner, 122 T.C. 143,           
          168 (2004) (quoting Higbee v. Commissioner, 116 T.C. 438, 442               
          (2001)).  Section 7491(a)(1) applies only if the taxpayer                   
          complies with substantiation requirements, maintains all required           
          records, and cooperates with the Commissioner for witnesses,                

          5We 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.            
          Commissioner, T.C. Memo. 2004-199.                                          




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