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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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Last modified: May 25, 2011