UNITED STATES TAX COURT 
                                                          WASHINGTON, DC 20217 

JULIE K. M.                      ) 
                   Petitioner    ) 
                                 ) 
     v.                          )      Docket No. 303xxx 
                                 ) 
COMMISSIONER OF INTERNAL REVENUE,) 
                                 ) 
                   Respondent    ) 

ORDER

On September 9, 2008, petitioner filed a motion to shift the burden of proof to respondent pursuant to section 7491. On September 19, petitioner filed an amended motion to shift the burden of proof along with a memorandum in support thereof. On September 25, 2008, respondent filed a motion for leave to file a response to petitioner’s motion to shift the burden of proof out-of-time and lodged therewith his response objecting to petitioner's motion.

Section 7491(a) (1) provides that if, "in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining" the taxpayer's liability for a tax (under subtitle A or B), the burden of proof with respect to such factual issues will be placed on the Commissioner, provided that various conditions are met. As preconditions for shifting the burden of proof, the taxpayer must have complied with the substantiation and record keeping requirements of the Internal Revenue Code and must have "cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews". Sec. 7491 (a) (2) (B). Whether the placement of the burden of proof makes any difference in a particular case ultimately depends upon the evidentiary record developed. That is because a shift in the burden of proof "has real significance only in the rare event of an evidentiary tie." Blodgett v. Commissioner, 394 F.3d 1030, 1039 (8th Cir. 2005), affg. T.C. Memo. 2003-212; see Estate of Bongard v. Commissioner, 124 T.C. 95, 111 (2005).

Petitioner has not met the requirements of section 7491(a) for shifting the burden of proof to respondent because, if for no other reason, she has so far introduced no evidence, much less credible evidence, in this Court proceeding. Respondent also alleges that petitioner has not filed a tax return for the year at issue and has not responded to information requests. Petitioner alleges that she has "cooperated in every respect". The record is presently inadequate to resolve this dispute, and we do not undertake presently to do so because, as just indicated, we shall dispose of the instant motion on other grounds.

In light of the foregoing, it is

ORDERED that respondent's Motion for leave to file a response out-of-time to petitioner's motion is granted and the Clerk of the Court is directed to file respondent's response to petitioner's motion to shift the burden of proof as of the date of its receipt. It is further.

ORDERED that petitioner's motion to shift the burden of proof, as amended, is denied.

Michael B. Thornton
Judge

Dated: Washington, D.C
September 26, 2008