- 19 -
(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
Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: November 10, 2007