8.2 TAX REFUND ACTIONS—ELEMENTS AND BURDEN OF PROOF—CLAIMED DEDUCTIONS
[On the plaintiff’s __________ claim,] the plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:
1. the plaintiff has a right to a deduction;
2. the amount of the deduction; and
3. that the government has declined to recognize the deduction.
If you find that the plaintiff has proved each of the elements on which the plaintiff has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.
See Comment to Instruction 8.1 (Tax Refund Actions—Elements and Burden of Proof—Claimed Refund). For a case involving a nondeductibility determination, see Interex v. Commissioner, 321 F.3d 55 (1st Cir.2003).