The burden of proof differs by the federal court hearing the Tax Litigation.


Taxpayer’s face a high burden of proof in refund suits. To prevail the taxpayer must prove that the IRS’s assessment was incorrect or erroneous and that he thus is entitled to a refund. He or she must also prove the specific amount of the refund to which he or she is entitled.


The burden of proof is ordinarily on the taxpayer in a deficiency action unless it is specifically placed on the IRS by Tax Court Rule or statute. The IRS’s determination as stated in the notice of deficiency (90 day letter) is presumed to be correct by the Tax Court at the outset of litigation. The taxpayer bears the burden of proving to the Tax Court that the deficiency determination by the IRS was erroneous. In cases involving income, estate, gift and generation skipping transfer taxes, the taxpayer may be able to shift the burden of proof to the IRS if he or she can show:

  • Sufficient credible evidence as to the facts and law at issue to support a contrary finding,
  • Sufficient compliance with the challenged substantiation and recordkeeping requirements that led to a portion of the Notice of Deficiency,
  • Sufficient cooperation with reasonable IRS requests, and
  • Where a corporation, trust or partnership has net worth of $7,000,000 or less.


The presumption of correctness does not apply when the IRS has the burden of proof under Tax Court Rules or the tax code. Examples of matters in which the burden of proof is on the IRS are as follows:

  • New matters raised by the IRS that were not included in the original deficiency notice
  • Increases in the deficiency amount asserted during litigation
  • Affirmative defenses asserted in the IRS answer
  • Allegation of fraud


Contact me, an Orange County, Irvine, Los Angeles County and Westwood Tax Litigation Attorney, to schedule your reduced rate initial consultation today.


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