Theodus J. Jordan - Page 5

                                        - 5 -                                         
                                       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).                                                                 




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  Next

Last modified: May 25, 2011