Theodore L. Sizelove, Sr. and Elaine J. Sizelove - Page 5




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                                     Discussion                                       
          1.  Burden of Proof                                                         
               The Commissioner’s determinations in a notice of deficiency            
          are presumed correct, and the taxpayer has the burden to prove              
          that the determinations are in error.  Rule 142(a); Welch v.                
          Helvering, 290 U.S. 111, 115 (1933).  But the burden of proof on            
          factual issues that affect a taxpayer’s tax liability may be                
          shifted to the Commissioner where the “taxpayer introduces                  
          credible evidence with respect to * * * such issue.”  Sec.                  
          7491(a)(1).  The burden will shift only if the taxpayer has                 
          complied with the substantiation requirements and has cooperated            
          with the Commissioner’s reasonable requests for witnesses,                  
          information, documents, meetings, and interviews.  Sec.                     
          7491(a)(2).  And the taxpayer must keep records sufficient to               
          establish the amount of the items required to be shown on his               
          Federal income tax return.  See sec. 6001; sec. 1.6001-1(a), (e),           
          Income Tax Regs.                                                            
               Petitioners have not alleged or proven that section 7491(a)            
          applies; accordingly, the burden remains on petitioners to show             
          that they are entitled to the deductions.  See INDOPCO, Inc. v.             
          Commissioner, 503 U.S. 79, 84 (1992) (stating that deductions are           
          strictly a matter of legislative grace, and taxpayers bear the              
          burden of proving that they are entitled to claim the deduction).           








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