26 U.S.C. § 7491

Burden of proof

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(a) Burden shifts where taxpayer produces credible evidence(1) General rule

If, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary shall have the burden of proof with respect to such issue.

(2) LimitationsParagraph (1) shall apply with respect to an issue only if—(A) the taxpayer has complied with the requirements under this title to substantiate any item;(B) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews; and(C) in the case of a partnership, corporation, or trust, the taxpayer is described in section 7430(c)(4)(A)(ii).Subparagraph (C) shall not apply to any qualified revocable trust (as defined in section 645(b)(1)) with respect to liability for tax for any taxable year ending after the date of the decedent’s death and before the applicable date (as defined in section 645(b)(2)).(3) Coordination

Paragraph (1) shall not apply to any issue if any other provision of this title provides for a specific burden of proof with respect to such issue.

(b) Use of statistical information on unrelated taxpayers

In the case of an individual taxpayer, the Secretary shall have the burden of proof in any court proceeding with respect to any item of income which was reconstructed by the Secretary solely through the use of statistical information on unrelated taxpayers.

Notwithstanding any other provision of this title, the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty, addition to tax, or additional amount imposed by this title.

(Added Pub. L. 105–206, title III, § 3001(a), July 22, 1998, 112 Stat. 726; amended Pub. L. 105–277, div. J, title IV, § 4002(b), Oct. 21, 1998, 112 Stat. 2681–906.)Editorial NotesPrior Provisions

A prior section 7491, act Aug. 16, 1954, ch. 736, 68A Stat. 893, placed the burden of proof in establishing the applicability of an exemption upon the defendant in the case of marihuana offenses, prior to repeal by Pub. L. 91–513, title III, §§ 1101(b)(5)(A), 1103, 1105(a), Oct. 27, 1970, 84 Stat. 1292, 1294, 1295, effective on first day of seventh calendar month that begins after Oct. 26, 1970, with prosecutions commenced prior to such date not to be affected or abated by reason thereof.

A prior section 7492, act Aug. 16, 1954, ch. 736, 68A Stat. 893, related to the enforceability of cotton futures contracts, prior to repeal by Pub. L. 94–455, title XIX, § 1952(n)(4)(A), (o), Oct. 4, 1976, 90 Stat. 1846, effective on the 90th day after Oct. 4, 1976.

A prior section 7493, act Aug. 16, 1954, ch. 736, 68A Stat. 893, provided that no person whose evidence is deemed material by the officer prosecuting on behalf of the United States in any case brought under any provision of subchapter D of chapter 39 of this title withhold his testimony because of complicity by him in any violation of subchapter D of chapter 39 of this title or of any regulation made pursuant to such chapter, but that such person called by such officer who testifies in the case be exempt from prosecution for any offense to which his testimony relates, prior to repeal by Pub. L. 91–452, title II, §§ 232, 260, Oct. 15, 1970, 84 Stat. 930, 931, effective on 60th day following Oct. 15, 1970, and not to affect any immunity to which any individual was entitled under by reason of any testimony given before 60th day following Oct. 15, 1970. See section 6001 et seq. of Title 18, Crimes and Criminal Procedure.

Amendments

1998—Subsec. (a)(2). Pub. L. 105–277 inserted concluding provisions.

Statutory Notes and Related SubsidiariesEffective Date of 1998 Amendment

Amendment by Pub. L. 105–277 effective as if included in the provision of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105–206, to which such amendment relates, see section 4002(k) of Pub. L. 105–277, set out as a note under section 1 of this title.

Effective Date

Pub. L. 105–206, title III, § 3001(c), July 22, 1998, 112 Stat. 727, provided that:“(1)In general.—The amendments made by this section [enacting this subchapter] shall apply to court proceedings arising in connection with examinations commencing after the date of the enactment of this Act [July 22, 1998].“(2)Taxable periods or events after date of enactment.—In any case in which there is no examination, such amendments shall apply to court proceedings arising in connection with taxable periods or events beginning or occurring after such date of enactment.”

Notes of Decisions

Cited in 181 cases (10 in the last 5 years), 1955–2025 · leading case: In re Wyly, 552 B.R. 338 (Bankr. N.D. Tex. 2016).

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In re Wyly, 552 B.R. 338 (Bankr. N.D. Tex. 2016). · cites it 8× “381 (2) Burden Shifting under 26 U.S.C. § 7491 ... 383 b) Fraud Penalties for Income Tax and Gift Tax Underpayments.”

Alpenglow Botanicals, LLC v. United States, 894 F.3d 1187 (10th Cir. 2018). · cites it 3× “Rather than challenge the district court's conclusion, Alpenglow relies on 26 U.S.C. § 7491 and argues that once it raised the allegation that the IRS lacked evidence of Alpenglow's purported trafficking, "the burden shifted to the Government as a matter of law to show it…”

Robert Griffin Julia Griffin v. Comm'r of Internal Revenue, 315 F.3d 1017 (8th Cir. 2003). · cites it 7× “For reversal, appellants argue that the tax court erred in holding that (1) real property taxes paid by Robert Griffin on behalf of two partnerships were not personally deductible under the circumstances and (2) appellants failed to present sufficient evidence to shift the bur…”

Diane S. Blodgett v. Comm'r of Internal Revenue, 394 F.3d 1030 (8th Cir. 2005). · cites it 3× “On appeal, she contends the tax court erred in not shifting the burden of proof to the Commissioner of Internal Revenue, pursuant to 26 U.S.C. § 7491 , as to whether there was a loss; in failing to likewise shift the burden of proof when the Commissioner introduced new evidence…”

Long Term Capital Holdings v. United States, 330 F. Supp. 2d 122 (D. Conn. 2004). · cites it 4× “In pertinent part, § 7491(a) provides, (a) Burden shifts where taxpayer produces credible evidence.— (1) General rule.”

Okerlund v. United States, 53 Fed. Cl. 341 (Fed. Cl. 2002). · cites it 6× “1994 INCOME TAX Plaintiffs argue that 26 U.S.C. § 7491 (a)(1) places the burden of proof for plaintiffs 1994 income tax refund claim on the government rather than the taxpayer.”

United States Internal Revenue Serv. v. Off. Comm. of Unsecured Creditors of Indus. Com. Elec., Inc. (In Re Indus. Com. Elec., Inc.), 319 B.R. 35 (D. Mass. 2005). · cites it 9× “It held that the burden of proof was governed by 26 U.S.C. § 7491 , which initially places the burden on the taxpayer but, should the taxpayer meet certain conditions, shifts it to the IRS on any factual issue in regard to which the taxpayer introduces “credible evidence.”

Southgate Master Fund, LLC Ex Rel. Montgomery Capital Advisors, LLC v. United States, 651 F. Supp. 2d 596 (N.D. Tex. 2009). · cites it 8× “Based on the evidentiary record presented at trial, the Court finds that Southgate cooperated with all reasonable IRS requests for meetings, interviews, witnesses, documents, and information within the meaning of 26 U.S.C. § 7491 (a)(2)(B) regarding the transactions at issue in…”

United States v. Fior D'Italia, Inc., 536 U.S. 238 (2002). · cites it 2× “See 26 U. S. C. § 7491 (a). [2] Although the scheme does not create a vested right to benefits in any employee, see Flemming v.”

Whitehouse Hotel Ltd. P'ship v. Comm'r, 615 F.3d 321 (5th Cir. 2010). · cites it 2× “Whitehouse asserts: the burden should have shifted because Whitehouse introduced credible evidence with respect to a factual issue, see 26 U.S.C. § 7491 ("Burden shifts where taxpayer produces credible evidence.”

United States v. Chrein, 368 F. Supp. 2d 278 (S.D.N.Y. 2005). · cites it 3× “abatement of taxes, interest, and penaltiés (Counterclaims 1-3); (2) damages for alleged failure by the IRS to release federal tax liens for Tax Years 1981 and 1982 (Counterclaims 4-5); (3) damages for negligent collection of taxes from a receiver and trustee (Counterclaims…”

Keating v. Comm'r, 544 F.3d 900 (8th Cir. 2008). · cites it 2× “26 U.S.C. § 7491 . We review de novo the legal question of whether a taxpayer produced evidence sufficient to shift the burden of proof to the IRS under 26 U.”

Show all 181 citing cases →

— 26 U.S.C. § 7491(a) — 1 case

Est. of Richard D. Spizzirri v. Comm'r of Internal Revenue, 136 F.4th 1336 (11th Cir. 2025).

— 26 U.S.C. § 7491(a)(1) — 1 case

Okerlund v. United States, 53 Fed. Cl. 341 (Fed. Cl. 2002). “1994 INCOME TAX Plaintiffs argue that 26 U.S.C. § 7491 (a)(1) places the burden of proof for plaintiffs 1994 income tax refund claim on the government rather than the taxpayer.”

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