Carol A. Johanson and Alfred F. Melzig, Jr. - Page 11

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               The parties dispute whether the burden of proof in this case           
          has been shifted to respondent pursuant to section 7491.  Section           
          7491(a) imposes the burden of proof on respondent if the taxpayer           
          introduces credible evidence with respect to any factual issue              
          and complies with the requirements of section 7491(a)(2)(A) and             
          (B) to substantiate all items at issue, maintain required                   
          records, and cooperate with reasonable requests of respondent.              
          We find it unnecessary to decide whether petitioners have met the           
          prerequisites of section 7491(a), because the record in this case           
          is not evenly weighted and the resolution of the issues in                  
          controversy does not depend upon which party bears the burden of            
          proof.  We render a decision on the preponderance of the evidence           
          in the record.  See, generally, Higbee v. Commissioner, 116 T.C.            
          438 (2001); Goode v. Commissioner, T.C. Memo. 2006-48.                      
               We hold that the spousal support payments by John to Carol             
          constitute alimony under section 71, since there is no liability            
          on John’s part to make any such payment for any period after the            
          death of Carol, the payee spouse, as provided by section                    
          71(b)(1)(D).                                                                
               To give effect to the foregoing,                                       

                                             Decision will be entered                 
                                        under Rule 155.                               








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