The taxpayer must affirmatively establish the right to a refund of the taxes by a preponderance of the evidence ( Maganini v. Quinn (1950) 99 Cal.App.2d 1, 8 [ 221 P.2d 241]), and cannot simply assert error and shift to the state the burden of justifying the tax. ( Hall v. Franchise Tax Board (1966) 244 Cal.App.2d 843, 848 [ 53 Cal.Rptr. 597].) The sales tax is imposed upon retailers.
The FTB's determinations are presumptively correct and the taxpayer bears the burden of proving them incorrect. ( Hall v. Franchise Tax Board (1966) 244 Cal.App.2d 843, 848 [ 53 Cal.Rptr. 597].) II. APPORTIONMENT UNDER SECTION 25120, SUBDIVISION (e)
On appeal, the FTB argues its position was substantially justified because it was based upon published California legal rulings permitting the FTB to rely on a federal audit in issuing a deficiency notice. (See, e.g., Montgomery Wards&sCo. v. Franchise Tax Bd., supra, 6 Cal.App.3d at p. 170; Hall v. Franchise Tax Board (1966) 244 Cal.App.2d 843, 848 [53 Cal.Rptr. 597].) The FTB also argues the Wertins failed to exhaust their administrative remedies before filing suit, and thus are not entitled to attorneys' fees. (§ 19717, subd. (b) (1).)
In an action for refund, `the taxpayer has the burden of proof to show that he is entitled to his claim. He cannot assert error and thus shift to the state the burden to justify the tax. . . .' ( Hall v. Franchise Tax Board (1966) 244 Cal.App.2d 843, 848 [ 53 Cal.Rptr. 597].)" ( Honeywell, Inc. v. State Bd. of Equalization (1982) 128 Cal.App.3d 739, 744 [ 180 Cal.Rptr. 479]; see Paine v. State Bd. of Equalization (1982) 137 Cal.App.3d 438, 442 [ 187 Cal.Rptr. 47].) B
He cannot assert error and thus shift to the state the burden to justify the tax. . . ." ( Hall v. Franchise Tax Board (1966) 244 Cal.App.2d 843, 848 [ 53 Cal.Rptr. 597].) (1b) Second, there are specific provisions of the Sales and Use Tax Law which place the burden of establishing nontaxability on the taxpayer.
(McDonnell Douglas, supra, 10 Cal.App.4th at p. 1420.) It cannot assert error and shift the burden to the state to justify the tax. (Consolidated Accessories Corp. v. Franchise Tax Board, supra, 161 Cal.App.3d at p. 1039; Hall v. Franchise Tax Bd. (1966) 244 Cal.App.2d 843, 848.) Under this principle and general tenets of statutory construction, our de novo resolution of Crest's claim to the section 6396 exemption is simple.