Zalman Melnik and Lea Melnik - Page 26

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               B.  The Parties’ Contentions                                           
               Respondent contends that the formation of the Rashi and                
          Rambam Trusts and the Melniks’ subsequent transfer of their                 
          HouTex stock to Clend in exchange for private annuities lacked              
          economic substance.  According to respondent, we should (1)                 
          disregard the annuity transactions as sham transactions lacking             
          economic substance and treat the entire proceeds from the HouTex            
          merger as petitioners’ income or (2) recharacterize the private             
          annuity transactions as transfers in trust with retained income             
          interests.                                                                  
               Petitioners maintain that the trusts and Clend were not                
          shams and that the private annuity transactions had economic                
          substance.  Petitioners bear the burden of proof.  Rule                     
          142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).32                  
               C.  The Sufficiency of the Record in General                           
               As the party with the burden of proof in this case,                    
          petitioners bear the ultimate burden of persuasion; i.e., the               
          risk of nonpersuasion, as well as the initial burden of                     
          production.  See, e.g., Gerling Intl. Ins. Co. v. Commissioner,             
          86 T.C. 468, 476 n.5 (1986).  In order to satisfy their initial             
          burden of production, petitioners were required to introduce                
          evidence sufficient, if believed, to demonstrate by a                       

               32In the stipulation of facts, petitioners conceded that               
          sec. 7491(a) does not apply to shift the burden of proof to                 
          respondent.                                                                 





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