George E. and Gloria Tschetschot - Page 11

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          action, we are not free to correct any perceived unfairness                 
          stemming from a rationally based policy choice.  In Valenti v.              
          Commissioner, T.C. Memo. 1994-483, the Court noted that treating            
          businesses based on wagering and gambling differently from other            
          businesses is a rational differentiation and not one that rises             
          to the level of being violative of due process or equal                     
          protection.  See also Steward Mach. Co. v. Davis, 301 U.S. 548,             
          584 (1937) (holding that Congress, like the states, has the                 
          freedom to tax businesses differently).  Thus, it has been held:            
               [A] classification that differentiates the business of                 
               gambling from other business has “a rational basis, and when           
               subjected to judicial scrutiny, it must be presumed to rest            
               on that basis if there is any conceivable state of                     
               facts which would support it.”  * * *                                  
          Valenti v. Commissioner, supra (quoting Carmichael v. Southern              
          Coal Co., 301 U.S. 495 (1937)).                                             
          II.  Substantial Understatement of Tax                                      
               With respect to a taxpayer’s liability for any penalty,                
          section 7491(c) places on the Commissioner the burden of                    
          production, thereby requiring the Commissioner to come forward              
          with sufficient evidence indicating that it is appropriate to               
          impose the penalty.  See Higbee v. Commissioner, 116 T.C. 438,              
          446-447 (2001).  Once the Commissioner meets his burden of                  
          production, the taxpayer must come forward with persuasive                  
          evidence that the Commissioner’s determination is incorrect.  See           







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