Colorado Mufflers Unlimited, Inc. - Page 11




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          U.S. 111, 115 (1933).  This principle applies to the                        
          Commissioner’s determination that a taxpayer’s workers are                  
          employees.  Boles Trucking, Inc. v. United States, 77 F.3d 236,             
          239-240 (8th Cir. 1996); Allen v. Commissioner, T.C. Memo. 2005-            
          118.                                                                        
               In certain circumstances, special statutory rules may apply            
          to shift the burden of proof to the Commissioner.  See, e.g.,               
          sec. 7491; act sec. 530(e)(4).11  However, petitioner does not              
          contend that these provisions affect an allocation of the burden            
          of proof in this case, and we conclude that they do not apply.              
               Petitioner does argue, however, that respondent’s                      
          determinations are arbitrary and capricious and that, therefore,            
          the burden of proof must shift to respondent.12  See United States          
          v. Janis, 428 U.S. 433, 441-442 & n.8 (1976) (burden of proof               
          shifts to Commissioner where determination lacks rational                   
          foundation).  However, petitioner has failed to demonstrate that            
          respondent acted arbitrarily in this case.  Petitioner’s behavior           
          during the audit and the pretrial preparation of this case was              
          characterized by a consistent lack of cooperation and by                    
          considerable obfuscation designed to prevent respondent from                


               11Subsec. (e) was added to act sec. 530 by the Small                   
          Business Job Protection Act of 1996, Pub. L. 104-188, sec.                  
          1122(a), 110 Stat. 1766.                                                    
               12Sec. 7491, which authorizes a shift in the burden of proof           
          if certain requirements are met, applies only to taxes imposed by           
          subtit. A or B and does not apply to employment taxes imposed by            
          subtit. C.                                                                  





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