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OPINION5
At the outset, we note that petitioner’s testimony was in
material respects highly unreliable and noncredible. For
instance, petitioner initially testified that Tyrone is 8 years
old. Shortly thereafter, petitioner introduced into evidence a
divorce decree that indicated that Tyrone was 8 months old as of
May 16, 1972. Petitioner then testified that Tyrone was born in
1976. Under questioning to corroborate that this would have made
Tyrone 26 years old in 2002, petitioner changed his testimony to
say that Tyrone was born in 1974. Upon observation that this
would have made Tyrone 28 years old in 2002, petitioner responded
that “I was not the best math student myself” before changing his
testimony again to say that Tyrone was born in 1976. With regard
to his own age, petitioner similarly gave inconsistent testimony,
first testifying that he is now 51 years old and on cross
examination testifying that he is now “fifty, fifty-four”. We
are not required to, and shall not, rely on petitioner’s
testimony with respect to the issues presented in this case
(other than as an admission that petitioner was less than age
59 1/2 at the time of the annuity distributions). See, e.g.,
Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).
5 We decide this case on the basis of the evidence in the
record without regard to the burden of proof. Accordingly, we
need not and do not decide whether the burden-shifting rule of
sec. 7491(a)(1) applies. See Higbee v. Commissioner, 116 T.C.
438 (2001).
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