- 17 - the parties’ joint stipulations of fact. Petitioners rely on these same exhibits in seeking an increased refund. Petitioners cannot expect to use this evidence to seek an increased refund and at the same time shield themselves from an increased deficiency or addition to tax based on the same evidence. Additionally, respondent informed petitioners at various times before trial, including in respondent’s pretrial memorandum, that respondent intended to raise the issues asserted in the amendment to answer. Petitioner’s testimony also demonstrated his knowledge of respondent’s intention. Accordingly, we shall grant respondent’s and petitioners’ motions to conform pleadings to the evidence. II. Items of Income Generally, taxpayers bear the burden of proving that the Commissioner’s determinations are incorrect. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). However, the Commissioner bears the burden of proof with respect to any new matter or increases in deficiency. Rule 142(a). Once the Commissioner produces evidence sufficient to establish a prima facie case, the burden shifts to the taxpayers of coming forward with evidence sufficient to rebut the Commissioner’s proof. See King v. Commissioner, T.C. Memo. 1995-524; Cally v. Commissioner, T.C. Memo. 1983-203 (citing Papineau v. Commissioner, 28 T.C. 54 (1957)).Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011