Lee B. Arberg and Melissa A. Quinn - Page 24




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          Court’s conclusions with respect to burden under section 7491(c)            
          will be detailed infra in conjunction with our discussion of the            
          section 6662(a) penalty.                                                    
               In a similar vein, section 6201(d) states:                             
                    SEC. 6201(d).  Required Reasonable Verification of                
               Information Returns.--In any court proceeding, if a                    
               taxpayer asserts a reasonable dispute with respect to                  
               any item of income reported on an information return                   
               filed with the Secretary under subpart B or C of part                  
               III of subchapter A of chapter 61 by a third party and                 
               the taxpayer has fully cooperated with the Secretary                   
               (including providing, within a reasonable period of                    
               time, access to and inspection of all witnesses,                       
               information, and documents within the control of the                   
               taxpayer as reasonably requested by the Secretary), the                
               Secretary shall have the burden of producing reasonable                
               and probative information concerning such deficiency in                
               addition to such information return.                                   
               Again, to the extent that respondent in determining the                
          disputed deficiency may have relied upon third-party information            
          returns reporting matters related to pertinent securities                   
          transactions, the full cooperation prerequisites for application            
          of section 6201(d) would appear to render the statute inoperative           
          here.                                                                       
               Lastly, a further exception is relevant to this proceeding.            
          The Commissioner bears the burden of proof with respect to any              
          affirmative defense or new matter raised in the answer.  Rule               
          142(a)(1).  As just described, by amendment to answer respondent            
          here expressly pleads the duty of consistency as an affirmative             
          defense.  See Cluck v. Commissioner, 105 T.C. 324, 331 n.11                 
          (1995) (characterizing the duty of consistency as an affirmative            






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