James K. Roberts - Page 9

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          petitioner has failed to rebut the presumption that such items              
          represented items of gross income.  See Tokarski v. Commissioner,           
          supra at 77.  Therefore, we sustain respondent’s determination of           
          a deficiency as it relates to such items.  We sustain no                    
          deficiency with respect to the deposit of $1,000 to the Astoria             
          account on December 28, 1987.                                               
               Petitioner’s position with respect to the June 23 and                  
          November 13, 1987, chip payments to Trump is unclear.  In her               
          notice of deficiency, respondent included those items as                    
          unreported income and described them as “Unexplained advances -             
          Libutti”.  Petitioner testified that the chip payments, which               
          repaid a loan made to petitioner by Trump, were made by Libutti.            
          On brief, petitioner argues that the transactions do not evidence           
          unreported income because there is no allegation of unreported              
          gambling winnings.  Petitioner’s argument is somewhat beside the            
          point.  These are not items that result from a reconstruction of            
          petitioner’s income where there is no evidence that petitioner              
          actually received anything during the period at issue.  If this             
          were such a situation, then petitioner might argue that, until              
          respondent links petitioner to an income-producing activity,                
          petitioner does not have the burden of proving he had no income.            
          See Llorente v. Commissioner, 649 F.2d 152 (2d Cir. 1981), affg.            
          in part, revg. in part, and remanding in part 74 T.C. 260 (1980)            
          (we would follow Llorente because it is likely that any appeal in           






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