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ing the presentation of different evidence is not a new matter
requiring the shifting of the burden of proof to respondent. See
Seagate Tech., Inc. & Consol. Subs., v. Commissioner, 102 T.C.
149, 169 (1994); Foster v. Commissioner, supra at 197.
On the instant record, we reject petitioners' contention
that respondent raised a matter as to which respondent has the
burden of proof in arguing that petitioners have unreported
income for 1989 and 1990 resulting from the deposits of
misappropriated funds.15 During the course of respondent's
examination of petitioners' returns for 1989 and 1990, respondent
did not have adequate books or records to determine whether
15 Petitioners rely on dicta in Big "D" Development Corp. v.
Commissioner, T.C. Memo. 1971-148, affd. 453 F.2d 1365 (5th Cir.
1972), to support that contention. That case held that, under
the facts presented, respondent had not raised a matter as to
which respondent had the burden of proof because "respondent
merely narrowed an issue after taking a broad position in the
statutory notice." The Court further stated in dicta in that
case on which petitioners rely that "It would be otherwise where
respondent's determination in a statutory notice is narrowly
drawn and, after the matter has been petitioned to this Court,
respondent advances new grounds not directly or implicitly within
the ambit of the determination made in the notice." Id. That
language does not in any way indicate that in cases, such as the
instant case, where respondent (1) reconstructs a taxpayer's
income by using the bank deposits method, (2) determines in the
notice of deficiency, based on the application of that method,
that certain deposits constitute income, and (3) sets forth her
assumption therein as to the source of that income, respondent
necessarily is advancing "new grounds not directly or implicitly
within the ambit of the determination made in the notice", id.,
when she thereafter argues that a portion of those deposits is
income from a source different from that assumed in the notice of
deficiency.
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