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personal property returns required by the State of Maryland.
OPINION
The issues remaining for decision are whether any of the
assets owned by MFV are includible in decedent’s gross estate
under section 2036(a), 2038(a)(1), or 2035(a).
Respondent does not address the burden of proof in this
case.40 According to decedent’s estate,
Generally, for issues or theories put forth by Respon-
dent in the notice of deficiency, the taxpayer bears
the burden of proof, and for Respondent’s issues or
theories not included in the notice of deficiency,
Respondent bears the burden of proof. * * * Because
Respondent did not raise IRC sections 2038 and 2035 in
its notice of deficiency in this case, Respondent bears
the burden with respect to its theories under those
sections; however, in any case the evidence will not
support a decision in Respondent’s favor.
Neither party addresses section 7491(a). We conclude that
resolution of the issues presented under sections 2036(a),
2038(a)(1), and 2035(a) does not depend on who has the burden of
proof.
40With respect to sec. 2036(a), respondent asserts on brief:
The burden of disproving the existence of an
agreement regarding retained economic enjoyment of the
transferred property rests on the estate, and this
burden has been characterized as particularly onerous
in intrafamily situations. * * * [Citations omitted.]
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