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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.
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