It’s nearly sixty years since I was introduced to the principle herein at the head above stated (as my expensive colleagues would say) by my junior high school classmate David Botstein, now Dr. David Botstein, now or formerly head of Lewis-Sigler Institute for Integrative Genomics, whatever they may be, at Princeton University.

I forget what point he or I was arguing, but he asserted that he was right based upon “the principle of dogmatic assertion”. He probably was right, at that.

But the principle comes to the aid of Lawrence Ebert and Rebecca Ebert in 2015 T. C. Memo. 5, filed 1/7/15.

Larry is fighting over a big $1410 of dividend payments he claims he never got, but IRS says he did. Although the deficiency can’t be all that great (Judge Colvin doesn’t say what IRS claimed it was, but states that it is “relatively small”, 2015 T. C. Memo. 5, at p. 6), Larry doesn’t take the small-claimer route, but goes for the big enchilada.

IRS has a recent letter from Computershare, the then registered agent for BNSF (whose shares Larry admits he owns), and a copy of a 1099-DIV they claim they sent Larry. Larry says everything got mixed up when The Oracle of Omaha bought BNSF and changed the registered agent from Computershare to Wells Fargo.

He kept calling Computershare and Wells Fargo about all manner of issues with his stock, he claims, but had no luck. And as to the letter IRS produced, Larry says he called the telephone number on the letter and got a recorded message that told him nothing.

Larry wants a burden shift, but Judge Colvin uses the preponderance-of-evidence gambit.

And Larry’s vociferous assertions, in support of a minimal tax break, carry the day.

“As with many other cases decided by this Court, see, e.g., Diaz v. Commissioner, 58 T.C. 560, 564 (1972), ‘[t]his case epitomizes the ultimate task of a trier of the facts–the distillation of truth from falsehood which is the daily grist of judicial life.’ The documentary evidence that respondent provided conflicts with petitioner husband’s detailed and energized testimony. We must resolve that conflict.” 2015 T. C. Memo. 5, at p. 4. I think you meant “energetic” testimony, Judge.

Howbeit, “We decide whether a witness’s testimony is credible based on objective facts, the reasonableness of the testimony, the consistency of statements made by the witness, and the demeanor of the witness. We may discount testimony which we find to be unworthy of belief… but we may not arbitrarily disregard testimony that is competent, relevant, and uncontradicted…. Petitioner husband has devoted a substantial amount of time to contest the relatively small amount of tax liability at issue here, and he testified consistently, clearly, and with considerable conviction in explaining the negative–that he did not receive the disputed dividend payments. He has persuaded us that he did not receive the disputed dividend payments in 2009.” 2015 T. C. Memo. 5, at pp. 5-6. (Citations omitted).

As for the “daily grist of judicial life”, see my blogposts “Practicing Accountancy Can Be Hazardous to Your Health”, 12/26/12, and “A Non-Christmas Carol”, 12/23/13.

Takeaway–Practitioners and petitioners, remember the words of Matt Hammond and Chris Rohman, not to forget Dr. David Botstein: “Say it loud.” And say it often.