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In general, the Commissioner's determination as set forth in
a notice of deficiency is presumed correct, and the taxpayer
bears the burden of proving that the determination is wrong. See
Rule 142(a). In certain circumstances, if the taxpayer
introduces credible evidence with respect to a factual issue
relevant to ascertaining the proper tax liability, section
7491(a) shifts the burden of proof to the Commissioner. Sec.
7491(a)(1); Rule 142(a)(2). Furthermore, section 7491(c)
provides that the Commissioner shall have the burden of
production in any court proceeding with respect to the liability
of any individual for any "penalty, addition to tax, or
additional amount" imposed by the Internal Revenue Code.
Petitioners do not argue that section 7491(a) is applicable,
and they have not established that the burden of proof should
shift to respondent, pursuant to section 7491(a). Furthermore,
as discussed above, the record shows that petitioner received a
distribution of $25,000 from a qualified retirement plan during
2002, before he had attained age 59-1/2. Thus, even if the
additional tax under section 72(t) is a "penalty, addition to
tax, or additional amount" within the meaning of section 7491(c),
a point we do not decide, there is ample evidence in the record
to satisfy any burden of production imposed by section 7491(c).
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Last modified: March 27, 2008