David White - Page 8

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               As is the case here, the taxpayers in Parker failed to file             
          income tax returns for the years in issue, yet relied upon the               
          Portillo cases for the proposition that the normal presumption of            
          correctness should not apply to the notices of deficiency because            
          the Commissioner's determinations of unreported income were based            
          upon Forms 1099 and W-2.  In rejecting this argument and                     
          affirming this Court's dismissal of the taxpayers' case for                  
          failure to state a claim upon which relief can be granted, the               
          Court of Appeals distinguished the Portillo cases as follows:                
               In Portillo, the IRS issued a notice of deficiency when                 
               it discovered that the taxpayer had reported                            
               substantially less income from a particular payor than                  
               that payor had reported in its Form 1099.  We found                     
               that the Commissioner "arbitrarily decided to attribute                 
               veracity to [the third-party payor] and assume that                     
               [the taxpayer's] Form 1040 was false."  [Portillo v.                    
               Commissioner, 932 F.2d at 1134.]  In Portillo, the                      
               Commissioner's determination was arbitrary because the                  
               Commissioner offered no factual basis for accepting one                 
               sworn statement, the Form 1099, while rejecting another                 
               sworn statement, the taxpayer's Form 1040.                              
                    Portillo did not hold that the IRS must conduct an                 
               independent investigation in all tax deficiency cases.                  
               In this case, the Commissioner has not arbitrarily                      
               found the third-party forms credible:  the Parkers                      
               never filed a Form 1040 or any other document in which                  
               they swore that they did not receive the payments in                    
               question.  The Commissioner has no duty to investigate                  
               a third-party payment report that is not disputed by                    
               the taxpayer.                                                           
          Parker v. Commissioner, 117 F.3d at 786-787.  We note that the               
          Court of Appeals concluded its opinion by imposing a penalty of              
          $2,000 against the taxpayers for bringing a frivolous appeal.                







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