Chief among all tiebreakers in the IRC is Section 7491, Burden of Proof. But the motion thus entitled isn’t really a motion to shift in Diamond Grande Resort, LLC, Diamond Grande Resort Holdings, LLC, Tax Matters Partner, Docket No. 16088-22, filed 1/20/26.

Judge Adam B. (“Sport”) Landy explains in a footnote.

“Petitioner’s Motion is titled ‘Motion to Shift the Burden of Proof’ but strictly speaking the Motion asks us not to ‘shift’ the burden but simply to rule that respondent’s valuation position is a new matter for purposes of Rule 142(a) and that respondent bears the burden of proof on that issue in the first instance.” Order, at p. 2, footnote 2.

Anyway, the stip of settled issues says valuation of the Dixieland boondocks in this syndicated conservation easement case is disputed, which shows the parties knew all along that this was an open question and not new matter.

Judge Sport Landy says the burden is relevant only when there’s an evidentiary tie. If one party’s evidence clearly outweighs the other’s at conclusion of the trial, who has the burden is irrelevant.

“The Court anticipates determining the fair market value of Diamond Grande Resort’s noncash charitable contribution based on a preponderance of the evidence in the record rather than based on the parties’ burdens of proof. The entire record in this case has not been fully developed and will not be fully developed until the conclusion of trial. As a result, the Court does not have sufficient information to rule on the contentions raised in petitioner’s Motion at this time. Thus, petitioner’s Motion is premature and petitioner may refile its Motion or raise these issues again on brief. Accordingly, petitioner’s Motion is denied without prejudice.” Order, at p.3.