Rameses School of San Antonio, Texas - Page 19




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          (1998), 1998-3 C.B. 747, 993-994.  Here, petitioner has made no             
          argument directed toward section 7491 and consequently has not              
          shown that all necessary prerequisites for a shift of burden have           
          been met.  Additionally, the record is replete with evidence                
          suggesting lack of cooperation.  Hence, regardless of the                   
          applicability of section 7491 in the setting of a declaratory               
          judgment action, an issue we do not reach, it is clear that it              
          would afford no relief to petitioner in this situation.  See S.             
          Cmty. Association v. Commissioner, T.C. Memo. 2005-285.                     
               Nonetheless, an additional exception is relevant to this               
          proceeding.  The Commissioner bears the burden of proof with                
          respect to any new matter raised in the answer.  Rule 142(a)(1).            
          By amendment to answer, respondent here expressly pleaded                   
          collateral estoppel.  To summarize, then, the burden rests on               
          petitioner to establish that it was operated exclusively for                
          exempt purposes, specifically overcoming the determination by               
          respondent of private inurement and benefit.  Respondent, on the            
          other hand, would have to shoulder the burden of showing                    
          applicability of collateral estoppel to prevent petitioner from             
          relitigating questions of fact pertaining to such issues of                 
          inurement, benefit, and the operational test.                               
               However, because the voluminous record in this case is                 
          replete with evidence that would compel the Court, in an                    
          independent weighing of the materials presented and without                 







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