- 39 - 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.Page: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 NextLast modified: November 10, 2007