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with the Commissioner (including providing access to an
inspection of all witnesses, information, and documents within
the control of the taxpayer as reasonably requested by the
Commissioner), then the Commissioner shall have the burden of
producing reasonable and probative information in addition to
such information return. Sec. 6201(d); Tanner v. Commissioner,
117 T.C. 237 (2001), affd. 65 Fed. Appx. 508 (5th Cir. 2003);
McQuatters v. Commissioner, T.C. Memo. 1998-88.
With respect to whether the $12,000 is includable in
petitioners’ gross income, petitioners did not raise this issue
until trial; therefore, they did not satisfy the requirements of
section 7491(a)(2) (complied with requirements to substantiate
any item and maintained records required and cooperated with
reasonable requests for information, documents, etc.), and the
burden of proof remains with petitioners. With respect to
whether the monthly payments are deductible as alimony, the facts
are not in dispute; therefore, we decide this issue without
regard to the burden of proof.
Although petitioners did not raise the issue, we note that
the Commissioner is allowed to make inconsistent determinations
against former spouses in order to protect the revenue in a
“whipsaw” situation. See Doggett v. Commissioner, 66 T.C. 101,
103 (1976); Smith v. Commissioner, T.C. Memo. 1996-292.
Inconsistent notices of deficiency do not negate the presumption
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