Larry J. and Sherilyn Wadsworth - Page 18

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          audit of Gold Coast by DHS which led Gold Coast and petitioners             
          to file amended tax returns for 2001 and 2002.  The allegations             
          in paragraph 8 clearly bear a relationship to the issues in this            
          case.  The allegations in paragraph 8 are therefore best left to            
          a determination on the merits, and we will deny petitioners’                
          amended motion to strike.  See Estate of Jephson v. Commissioner,           
          supra at 1003.                                                              
          III.  Petitioners’ Motion To Shift the Burden of Proof                      
               Petitioners argue that if their motion to dismiss for lack             
          of jurisdiction is not granted, the burden of proof should be               
          shifted to respondent.  As best we can tell, petitioners seem to            
          argue that the burden of proof should be shifted to respondent              
          with regard to all issues in dispute.  In support of their                  
          motion, petitioners rely on Weimerskirch v. Commissioner, 596               
          F.2d 358 (9th Cir. 1979), revg. 67 T.C. 672 (1977), and, as                 
          mentioned supra, Shea v. Commissioner, 112 T.C. 183 (1999).4                
               Under Rule 142(a)(1), the burden of proof shall be upon the            
          petitioner, except as otherwise provided by statute or determined           
          by the Court; and except that, in respect of any new matter,                

               4  Petitioners also rely on Scar v. Commissioner, 814 F.2d             
          1363 (9th Cir. 1987), revg. 81 T.C. 855 (1983).  As discussed               
          supra, the relevant portions of Scar relate to the issue of                 
          jurisdiction and not to the burden of proof.                                

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