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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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