Rhett Rance Smith and Alice Avila Smith, et al. - Page 28




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          Commissioner with respect to a factual issue affecting the                  
          taxpayer’s liability for tax where the taxpayer introduces                  
          credible evidence with respect to such a factual issue and meets            
          certain substantiation requirements set forth in section                    
          7491(a)(2)(A) and (B).                                                      
               Respondent contends that petitioners’ argument as to the               
          burden of proof was untimely raised and that, even if it had been           
          timely, it is petitioners’ burden to show that they have met the            
          requirements of section 7491(a)(2), which they have not done.  We           
          agree with respondent that petitioners’ attempt to raise section            
          7491 for the first time in their posttrial brief is untimely.               
               Under section 7491 petitioners must, for example, show that            
          they cooperated during the audit and that they met substantiation           
          requirements.  Petitioners’ attempt on brief to show that they              
          met the requirements by the simple expediency of stating that               
          respondent did not question the substantiation or that they                 
          cooperated will not suffice.  Petitioners, by raising those                 
          allegations on brief, do not afford respondent the opportunity to           
          test the allegations by cross-examination or by producing                   
          evidence to show otherwise.  Therefore, we hold that petitioners’           
          attempt to shift the burden under section 7491 causes prejudice             












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