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ascertaining the taxpayer’s liability. Sec. 7491(a)(1).
However, where the Commissioner raises a new matter or claims an
increase in the deficiency, the burden of proof is on the
Commissioner. Rule 142(a)(1); Achiro v. Commissioner, 77 T.C.
881, 889-890 (1981); Burris v. Commissioner, T.C. Memo. 2001-49;
Jamerson v. Commissioner, T.C. Memo. 1986-302.
As to the adjustments set forth in the notice of deficiency,
petitioner has neither argued that the burden of proof should
shift nor satisfied the criteria that would cause the burden of
proof to shift. As to petitioner’s alternative position that
there was a theft loss, petitioner did not raise this issue until
trial; therefore petitioner 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 petitioner. As to the remaining
issues, given the lack of documentation and information provided
by petitioner, we conclude that the burden of proof remains with
her with respect to all adjustments determined in the notice of
deficiency. As to the burden of proof with respect to the
nonrecognition of gain, including the adjustment claimed in
respondent’s answer, petitioner has agreed that respondent’s
computation of the gain is correct and there is otherwise no
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