5.1.a.7.i Automatic Stay

• Jurisdiction: United States

i. Re validity of claim

The courts are split as to which party (debtor or IRS) should bear the burden of proof in bankruptcy proceedings.

The burden of proof generally is with the debtor/taxpayer in tax court. Tax Court Rule 142.

The Third, Fourth and Seventh circuits have held that the burden is on the debtor. Resyn Corp. v. United States, 851 F.2d 660 (3d Cir. 1988); IRS v. Levy, 973 F.2d 265 (4th Cir. 1992); U.S. v. Charlton, 2 F.3d 237 (7th Cir. 1993). The Fifth, Eighth, Ninth and Tenth hold that the burden is on the taxing entity. In re MacFarlane, 83 F.3d 1041 (9th Cir. 1996); Brown v. IRS, 82 F.3d 801 (8th Cir. 1996); Placid Oil Co. v. IRS, 988 F.2d 554 (5th Cir. 1993); Fullmer v. U.S., 962 F.2d 1463 (10th Cir. 1992). Held, the IRS has the burden of proving no return was filed. In re Nunez, 232 B.R. 778, 782 (9th Cir. BAP 1998).

Held, once...