Eligibility
Applies to any individual facing penalties, additions to tax, or additional amounts in a court proceeding.
Frequently Asked Questions
Who is eligible for the Penalty Defense via Burden of Production?
Applies to any individual facing penalties, additions to tax, or additional amounts in a court proceeding.
How does the Penalty Defense via Burden of Production work?
The IRS is required to provide initial evidence (burden of production) that a penalty or addition to tax is appropriate for an individual before the penalty can be sustained.
What law authorizes the Penalty Defense via Burden of Production?
The Penalty Defense via Burden of Production is authorized under IRC §7491(c) of the Internal Revenue Code (Title 26, United States Code).
Statutory Text — IRC §7491
Source: Internal Revenue Code, Title 26, United States Code
§ 7491. Burden of proof(a) Burden shifts where taxpayer produces credible evidence(1) General ruleIf, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary shall have the burden of proof with respect to such issue.
(2) LimitationsParagraph (1) shall apply with respect to an issue only if—(A) the taxpayer has complied with the requirements under this title to substantiate any item;
(B) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews; and
(C) in the case of a partnership, corporation, or trust, the taxpayer is described in section 7430(c)(4)(A)(ii).
Subparagraph (C) shall not apply to any qualified revocable trust (as defined in section 645(b)(1)) with respect to liability for tax for any taxable year ending after the date of the decedent’s death and before the applicable date (as defined in section 645(b)(2)).
(3) CoordinationParagraph (1) shall not apply to any issue if any other provision of this title provides for a specific burden of proof with respect to such issue.
(b) Use of statistical information on unrelated taxpayersIn the case of an individual taxpayer, the Secretary shall have the burden of proof in any court proceeding with respect to any item of income which was reconstructed by the Secretary solely through the use of statistical information on unrelated taxpayers.
(c) PenaltiesNotwithstanding any other provision of this title, the Secretary 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 this title.
(Added Pub. L. 105–206, title III, § 3001(a), July 22, 1998, 112 Stat. 726; amended Pub. L. 105–277, div. J, title IV, § 4002(b), Oct. 21, 1998, 112 Stat. 2681–906.)
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