Estate of Sylvia Gore, Donor, Deceased, Pamela Powell, Personal Representative - Page 39




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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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