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will expire soon and requests that they sign and return a Form
872, Consent to Extend the Time to Assess Tax. It also describes
petitioners’ rights, including their right to withhold consent.
The letter states: “It may be considered that you have
cooperated with the Internal Revenue Service, for purposes of
determining who has the burden of proof in any court proceeding,
even if you do not sign the consent form.” Petitioners believe
that this constitutes a concession by respondent that he bears
the burden of proof. We disagree.
In general, the Government must assess tax within 3 years
after the due date of a timely filed return. Sec. 6501(a) and
(b)(1). The Secretary and a taxpayer can consent to extend the
assessment period, but the Secretary must notify the taxpayer of
the taxpayer’s right to withhold such consent. Sec.
6501(c)(4)(A) and (B). Respondent’s letter informs petitioners
of their rights, but it does not concede that respondent bears
the burden of proof. Rather, it explains that withholding
consent is not considered in deciding whether petitioners
cooperated fully with reasonable requests for witnesses,
documents, and other information. The letter does not cause the
burden of proof to shift to respondent, and petitioners’ reliance
on the letter therefore is misplaced.
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Last modified: May 25, 2011