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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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