- 4 - Background Some of the facts and exhibits were stipulated, and those facts are so found. At the time the petition was filed, petitioner was a legal resident of Middle Village, New York.4 From May 21, 2001, until January 11, 2002, petitioner was employed as a mechanical HVAC engineer for KeySpan Engineering Associates (KeySpan Associates). In that capacity, petitioner worked on several design projects in the office. After petitioner left KeySpan Associates on January 11, 2002, 3(...continued) 164(f). A witness from the payor testified at trial regarding this payment, and the Court is satisfied that respondent correctly determined the payment to be self-employment income, which petitioner reported on his return. Petitioner, however, presented no evidence challenging the determination that petitioner is liable for self-employment tax on the distribution; consequently, the Court deems that issue as conceded. 4 Sec. 7491(a) generally shifts the burden of proof to the Commissioner with regard to any factual issue relevant to ascertaining the taxpayer’s liability. Sec. 7491(a)(2) limits this rule only with respect to issues to which the taxpayer has complied with the requirements for substantiation of any item, has maintained all records with respect to such items, and has cooperated with reasonable requests by the Secretary for witnesses, information, documents, and interviews, etc., regarding the matters at issue. Since petitioner did not cooperate with respondent in providing records to substantiate the items on his return, the burden of proof does not shift. However, as to fraud under sec. 6663(a), sec. 6663(b) provides that, with respect to any portion of an underpayment that is attributable to fraud, the entire underpayment is treated as attributable to fraud except for any portion of the underpayment that the taxpayer establishes is not attributable to fraud. Sec. 7454(a) provides that, in any proceeding involving fraud, the burden of proof as to such issue is upon the Secretary. Thus, the burden of proof on the fraud issue in this case is on respondent.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011