*22 Decision will be entered for the respondent.
On Mar. 21, 1975, petitioners executed a contract for the purchase of their present residence, which was to be constructed by the seller. However, the lot was not cleared and construction was not begun until after Mar. 26, 1975. Nevertheless, petitioners claimed a credit from their income taxes for 1975, attaching a certificate to their return, as required by statute, stating that the residence was for a qualifying price and that construction was begun prior to Mar. 26, 1975. Held, the filing of the required certificate of price and date does not shift the burden of proof from petitioners. Held, further, petitioners are not entitled to a credit against their 1975 income taxes under
*286 Respondent determined a deficiency in petitioners' Federal income tax for the year 1975 in the amount of $ 1,713, as set forth in his statutory notice of deficiency dated July 12, 1978. The issue presented for our decision is whether the construction of petitioners' new residence was commenced before March 26, 1975, thereby entitling petitioners to a credit under
*24 FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The stipulation of facts, and the exhibits thereto, are incorporated herein by this reference.
Petitioners Chester L. and Beverly G. Morris resided at 8952 Saddlewood Drive, Jonesboro, Ga., in the residence in question, when the petition herein was filed. They timely filed a joint Federal income tax return for the year 1975 with the Internal Revenue Service Center, Chamblee, Ga.
On February 27, 1975, petitioners executed a standard sales contract with Four Oaks Properties, Inc. (Four Oaks), for the purchase of a residence to be built on lot 22-B of Unit One of the Country Lane South Subdivision in Jonesboro. A second contract, superseding the first, was executed by petitioners with Four Oaks on March 21, 1975, for a residence to be built on lot 18-C of the same subdivision, later known as 8952 Saddlewood Drive.
M & W Grading & Hauling (M & W) cleared and graded lots *287 for Four Oaks in the subdivision in question. Because of tornadoes and heavy rains 2 in the area on Monday, March 24, 1975, however, M & W could not clear or grade lot 18-C before April 9, 1975. Sometime after April 9, M & W cleared*25 lot 18-C in and around four stakes which had been driven in the otherwise untouched lot to designate the positioning of the house. In accordance with its usual practice of always billing the previous 7 days' work each Wednesday, M & W billed Four Oaks for clearing lot 18-C on April 16, 1975. Footings for the foundation were dug after the lot was cleared.
Petitioners filed their Federal income tax return for the year 1975, claiming a credit under
To the contrary, respondent contends that petitioner has not shown that construction was begun prior to March 26, 1975, and *288 denies that the burden of proof has been shifted from petitioners by the existence of the certificate.
OPINION
*28 Petitioners attached to their 1975 return a certificate which was received from Four Oaks, and which, if correct, would clearly qualify petitioners for the credit under
Generally, the burden of proof rests with petitioner, except as otherwise provided by statute or as determined by the Court or its rules.
*29 Since the burden of proof is not shifted to respondent, it *289 remains with the petitioners.
M & W did not clear lot 18-C until after April 9, 1975. It was not until after the lot was cleared that footings for the foundation were dug. We do not need to decide here whether construction is commenced upon the clearing of the lot or upon the digging of the foundation, since both of these acts occurred well after March 26, 1975. 7
We are well aware of the representations made by the certificate from Four Oaks. However, those representations, without more, cannot entitle petitioners to the credit where the facts show that the certificate is incorrect. 8
*31 To reflect the foregoing,
Decision will be entered for the respondent.
Footnotes
1. All statutory references are to the Internal Revenue Code of 1954, as amended and in effect at the time in question, unless otherwise noted.↩
2. In the 24-hour period preceding 7 a.m., Mar. 25, 1975, the Atlanta metropolitan area received 1.48 inches of rain.↩
3.
SEC. 44 . PURCHASE OF NEW PRINCIPAL RESIDENCE.(e) Property to Which Section Applies. --
* * * *
(4) Certification must be attached to return. -- This section does not apply to any residence (other than a residence constructed by the taxpayer) unless there is attached to the return of tax on which the credit is claimed a written certification (which may be in any form) signed by the seller of such residence that --
(A) construction of the residence began before March 26, 1975, and
(B) the purchase price of the residence is the lowest price at which the residence was offered for sale after February 28, 1975.
For purposes of this paragraph, a written certification filed by a taxpayer is sufficient whether or not it is on a form prescribed by the Secretary so long as such certification is signed by the seller and contains the information required under this paragraph.↩
4. Petitioners' position in this case is derived from their petition and their opening statement at trial. No briefs by or on behalf of petitioners were filed prior to the extended deadlines for briefs and reply briefs, and petitioners did not produce any witnesses or any evidence other than the stipulation of facts.↩
5.
SEC. 44 . PURCHASE OF NEW PRINCIPAL RESIDENCE.(a) General Rule. -- In the case of an individual there is allowed, as a credit against the tax imposed by this chapter for the taxable year, an amount equal to 5 percent of the purchase price of a new principal residence purchased or constructed by the taxpayer.
* * * *
(e) Property to Which Section Applies. --
(1) In general. -- The provisions of this section apply to a new principal residence --
(A) the construction of which began before March 26, 1975,
(B) which is acquired and occupied by the taxpayer after March 12, 1975, and before January 1, 1977, and
(C) if not constructed by the taxpayer, which was acquired by the taxpayer under a binding contract entered into by the taxpayer before January 1, 1976.↩
6. S. Rept. 36, 94th Cong., 1st Sess. (1975),
1 C.B. 590">1975-1 C.B. 590 , 605-606; Conf. Rept. 328, 94th Cong., 1st Sess. (1975),2 C.B. 523">1975-2 C.B. 523 , 525. In fact, the requirement of date certification is only mentioned in the statute and one sentence of the Conference Report. Certification of the price of the residence, and no other facts, was the originally proposed requirement ofsec. 44(e)(4) . By making provisions for treble damages to the purchaser for the seller's false certification of the price, Congress showed that the required certificate of price would not be acceptable as presumptively and conclusively correct. Sec. 208(b), Tax Reduction Act of 1975, Pub. L. 94-12, 89 Stat. 35. Certification of the date, almost an afterthought, should not be given more weight than certification of the price which was the original motivation forsec. 44(e)(4)↩ .7. Such a distinction was made in
Reddy v. United States, 436 F. Supp. 377">436 F. Supp. 377 (N.D. Ill. 1977), where the validity of the guidelines insec. 1.44-2(a)(1)(i), Income Tax Regs.↩ , was upheld.8. Compare
Roberts v. Commissioner, 62 T.C. 834">62 T.C. 834 , 839 (1974);Halle v. Commissioner, 7 T.C. 245">7 T.C. 245 , 249-250↩ (1946) (sworn statement of petitioner that his tax return is correct does not satisfy his burden of proof and need not be accepted as accurate by the Commissioner where other information shows to the contrary).