In the discussion of Presumptions in the 2020 editions of the Federal Tax Procedure book (Practitioner Ed. pp. 576-577; Student Ed. pp. 399-400), I quote Rule 301. Presumptions in General Civil Actions and Proceedings. I had not updated that discussion to include the revision of Rule 301 in 2011. (Apologies to readers.) As revised the Rule (here) reads:
Rule 301. Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
As stated in the Committee Notes on Rules-2011 Amendment, the Rule was amended in 2011 solely for readability and stylistic reasons but without change in substance from Federal Rule of Evidence 301 as enacted in 1976. That means that the discussion in the 2020 editions is appropriate for present purposes.
I have also in the working draft for the 2021 editions of the Federal Tax Procedure book made other changes in the section dealing with Presumptions. Those changes are not materially different from the discussion in the 2020 editions, so I do not offer them now. However, those wanting most of that nuance can find it in John A. Townsend, Burden of Proof in Tax Cases: Valuation and Ranges—An Update, 73 Tax Lawyer 389, 403-407 (2020). (The article can be viewed and downloaded at SSRN here.)
No comments:
Post a Comment