Rhett Rance Smith and Alice Avila Smith, et al. - Page 29




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          and is untimely.3  See, e.g., Deihl v. Commissioner, T.C. Memo.             
          2005-287.                                                                   
               Accordingly, petitioners continue to bear the burden of                
          proof with respect to the noncash charitable contribution issue             
          and the question of whether they carried on various activities              
          for profit within the meaning of section 183.  Respondent does              
          bear the burden of production with respect to the section 6662              
          penalty.  See sec. 7491(c).  That burden is to come forward with            
          sufficient evidence regarding the appropriateness of applying a             
          particular addition to tax or penalty against the taxpayer.  Sec.           
          7491(c);  Wheeler v. Commissioner, 127 T.C. 200 (2006); Higbee v.           
          Commissioner, 116 T.C. 438 (2001).                                          
          Noncash Charitable Contributions                                            
               Petitioners are members of the same family comprising a                
          father (Rance) and two sons (Rhett and Zane) and their respective           
          spouses.  Together, they owned and operated Beneco, a corporation           
          that provides business services in connection with qualified                
          retirement and health and welfare plans.  Rance and his wife                
          owned slightly over 50 percent of Beneco, and Rhett and Zane,               
          along with their wives, each owned one-half of the remaining                
          minority interest.  Petitioners claimed noncash charitable                  
          contributions of FLP interests.  The FLPs were created and                  

               3 In any event, petitioners have not shown compliance with             
          the substantiation requirements of sec. 7491(a)(2) so as to                 
          warrant a shift in the burden of proof as to any of the factual             
          issues relevant to their liability for tax.                                 





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