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incorrect. Rule 142(a)(1); INDOPCO, Inc. v. Commissioner, 503
U.S. 79, 84 (1992); Welch v. Helvering, 290 U.S. 111, 115 (1933).
However, the Commissioner bears the burden of proof with respect
to any new matter pleaded in the answer. See Rule 142(a)(1).
Respondent concedes that he has the burden of proof on the issue
of whether decedent’s alleged transfer of Marital Fund assets to
GFLP was an incomplete transfer, because respondent asserted this
alternative theory in an amendment to his answer.
With respect to the remaining issues, petitioner has not
argued that section 7491 applies, nor has petitioner established
that the requirements of section 7491(a) have been met.39
Consequently, we conclude that section 7491(a) does not shift the
burden of proof to respondent on the remaining issues. We note,
however, that our conclusions are based upon the preponderance of
the evidence and do not depend upon any allocation of the burden
of proof.
39Before trial, petitioner filed a motion to shift burden of
proof to respondent but did not assert that sec. 7491 applies.
Rather, petitioner argued that respondent’s determinations were
arbitrary and excessive, on the basis of alleged errors in the
notices of deficiency and respondent’s reliance on several
alternative theories in the case. At the beginning of the trial,
we denied the motion without prejudice to petitioner’s right to
raise burden of proof issues in the posttrial briefs. Petitioner
did not raise any burden of proof issues in the briefs, and
consequently, we deem petitioner to have abandoned the arguments
regarding the burden of proof.
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