- 13 - 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.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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