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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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