Joseph M. and Marjorie Sita - Page 7




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          explanation section for the “Other” expense, petitioners stated             
          the $14,000 was for a “payout of phone equipment”.                          
               Thell Prueitt, a representative of Alpha Telcom, helped                
          petitioners prepare the 2001 and 2002 returns.                              
               Respondent issued a notice of deficiency on March 3, 2005,             
          disallowing the Schedule C deductions for 2001 and 2002 and the             
          Form 8826 credit for 2001.  Petitioners timely filed their                  
          petition on June 1, 2005.                                                   
                                       OPINION                                        
          I.  Burden of Proof                                                         
               Under section 7491, the burden of proof shifts from the                
          taxpayer to the Commissioner if the taxpayer produces credible              
          evidence with respect to any factual issue relevant to                      
          ascertaining the taxpayer’s tax liability.  Sec. 7491(a)(1).                
          However, section 7491(a)(1) applies with respect to an issue only           
          if the taxpayer has complied with the requirements to                       
          substantiate any item, has maintained all records, and has                  
          cooperated with reasonable requests by the Commissioner for                 
          witnesses, information, documents, meetings, and interviews.  See           
          sec. 7491(a)(2)(A) and (B).                                                 
               Although petitioners claimed that section 7491(a) applies,             
          they failed to introduce sufficient evidence to shift the burden            
          to respondent.  Nonetheless, our findings in this case are based            








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