Bidyut K. Bhattacharyya and Diana T. Bhattacharyya - Page 17

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          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)).                                                                    






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