Herbert V. Kohler, Jr., et al. - Page 15

                                        -15-                                          
          I.   Burden of Proof                                                        
               In general, the Commissioner’s determinations in the                   
          deficiency notice are presumed correct, and the taxpayer has the            
          burden of proving that the Commissioner’s determinations are in             
          error.  See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115              
          (1933).  The burden of proof may shift to the Commissioner with             
          respect to a factual issue relevant to a taxpayer’s liability for           
          tax under certain circumstances, however, if the taxpayer                   
          introduces credible evidence and establishes that he or she                 
          substantiated items, maintained required records, and fully                 
          cooperated with the Commissioner’s reasonable requests.  Sec.               
          7491(a)(2)(A) and (B).6                                                     
               At trial, we granted the estate’s motion to shift the burden           
          of proof to respondent, because we found that the estate                    
          introduced credible evidence including the testimony of several             
          factual witnesses, substantiated items, maintained records, and             
          cooperated with respondent’s reasonable requests.                           
               A. The Estate’s Cooperation With Respondent                            
               Respondent urges us to revisit the question of the burden of           
          proof now, arguing that the estate did not cooperate with                   
          respondent’s reasonable requests because the estate filed a                 

               6Sec. 7491 is effective with respect to court proceedings              
          arising in connection with examinations by the Commissioner                 
          commencing after July 22, 1998, the date of enactment of the                
          Internal Revenue Service Restructuring and Reform Act of 1998,              
          Pub. L. 105-206, sec. 3001(a), 112 Stat. 726.                               





Page:  Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  Next

Last modified: May 25, 2011