- 22 - 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 havePage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011