Cathy Miller Hardy - Page 9

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          see Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).9             
          We find all of petitioner's arguments regarding who has the                 
          burden of proof to be without merit.  For example, petitioner               
          contends that the notice is arbitrary.  The only argument that              
          petitioner advances in support of that contention is that respon-           
          dent's concession of certain determinations in the notice renders           
          the notice arbitrary as to the remaining determinations therein.            
          We reject that contention.  See United States Holding Co. v.                
          Commissioner, 44 T.C. 323, 328 (1965).  We also reject peti-                
          tioner's contention that, in an unreported income case such as              
          the instant case, the burden of proof shifts to respondent merely           
          because, if it does not, petitioner would be required to prove a            
          negative.  See Rule 142(a); Rapp v. Commissioner, 774 F.2d 932,             
          935 (9th Cir. 1985), affg. an Order of this Court.10                        
               The Income Allegedly Paid to                                           
               and/or Earned by Mr. Hardy                                             
               During the Years at Issue                                              
               Respondent has presented evidence establishing that during             


          9  On the record before us, our findings with respect to whether            
          Mr. Hardy has income for the years at issue would remain the same           
          regardless who bears the burden of proof on that question.                  
          10  On the instant record, we find that respondent has come                 
          forward with substantive evidence establishing an evidentiary               
          foundation for respondent's determinations in the notice that Mr.           
          Hardy has income for 1984 and 1985.  See Rapp v. Commissioner,              
          774 F.2d 932, 935 (9th Cir. 1985), affg. an Order of this Court;            
          Weimerskirch v. Commissioner, 596 F.2d 358, 360 (9th Cir. 1979),            
          revg. 67 T.C. 672 (1977).                                                   






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