Bernard A. Kansky - Page 13

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                  8. Advised for Tax Court by IRS agent that penalties                                  
                  nominal and not to be concerned about interest which                                  
                  was incorrect.                                                                        
                                               OPINION                                                  
            A.    Burden of Proof                                                                       
                  The burden of proof is generally upon petitioner, except as                           
            may be otherwise provided by statute or determined by the Court.                            
            See Rule 142(a).  For the first time on reply brief, petitioner                             
            contends, with little elaboration, that respondent has the burden                           
            of proof pursuant to section 7491.  Because petitioner did not                              
            raise this argument or position in his pretrial memorandum, at                              
            trial, or on opening brief, respondent has had no opportunity to                            
            address petitioner’s position.  Petitioner’s attempt to raise                               
            this argument on reply brief is untimely and prejudicial to                                 
            respondent.  See Estate of Deputy v. Commissioner, T.C. Memo.                               
            2003-176.                                                                                   
                  More fundamentally, section 7491 has no applicability to                              
            these consolidated cases.7  Section 7491(a) operates to shift the                           
            burden of proof to the Commissioner in certain circumstances with                           


                  7 Moreover, petitioner failed to establish that sec. 7491                             
            was in effect at any time relevant to these cases.  Sec. 7491 is                            
            effective with respect to court proceedings arising from                                    
            examinations commenced after July 22, 1998.  See Internal Revenue                           
            Service Restructuring and Reform Act of 1998, Pub. L. 105-206,                              
            sec. 3001(c)(2), 112 Stat. 727.  We question whether the                                    
            “examination” in this case commenced after July 22, 1998, as                                
            required for sec. 7491 to apply.  It appears obvious that at                                
            least with respect to 1987, 1990, and 1991, the examination                                 
            commenced well before July 22, 1998.                                                        





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