John S. and Christobel D. Rendall - Page 22

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          petitioners’ total 1997 net loss over the net loss reported on              
          the third amended return.                                                   
                                       OPINION                                        
          I.  Burden of Proof                                                         
          Petitioners argue that, pursuant to section 7491(a), the                    
          burden of proof “has shifted to” respondent with respect to all             
          of the factual issues.  Petitioners further argue that respondent           
          conceded at trial that he bears the burden of proof on all issues           
          except the LIFO/FIFO basis issue, and that respondent bears the             
          burden of proof on that issue as well because petitioners have              
          “met the preconditions of Section 7491 on * * * [that] issue.”              
               Generally, a taxpayer in this court bears the burden of                
          proof.  Rule 142(a)(1).  In certain circumstances, however, if              
          the taxpayer introduces credible evidence with respect to any               
          factual issue relevant to ascertaining the proper tax liability,            
          section 7491 shifts the burden of proof to the Commissioner.                
          Sec. 7491(a)(1); Rule 142(a)(2).  Credible evidence is evidence             
          the court would find sufficient upon which to base a decision on            
          the issue in favor of the taxpayer if no contrary evidence were             
          submitted.  See Higbee v. Commissioner, 116 T.C. 438, 442 (2001);           
          Bernardo v. Commissioner, T.C. Memo. 2004-199 n.6.  Section                 
          7491(a)(2) imposes certain prerequisites to the application of              
          section 7491(a)(1), including that the taxpayer must have                   








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