Rafael M. and Rosario Gutierrez - Page 7

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               We also note that section 7491(a) is inapplicable here in              
          that we do not find that petitioners maintained adequate records            
          or satisfied applicable substantiation requirements.  See Prince            
          v. Commissioner, supra.  We hold that the burden of proof remains           
          with petitioners.                                                           
          II. Understatement of Income                                                
               The deficiency determination made by respondent enjoys the             
          presumption of correctness, and the burden of proving otherwise             
          rests with petitioners.  Rule 142(a); Rapp v. Commissioner, 774             
          F.2d 932, 935 (9th Cir. 1985).  However, in the case of                     
          underreported income, the usual presumption in favor of                     
          respondent arises only if respondent’s allegations are supported            
          by a minimal factual foundation linking the taxpayer with an                
          income-producing activity.  Palmer v. United States, 116 F.3d               
          1309, 1313 (9th Cir. 1997).                                                 
               Here, respondent has established that petitioners, in 1998,            
          (1) had been engaged in an income-producing activity, to wit,               
          their ownership and operation of the billiard hall and (2) had              
          accumulated net deposits in the amount of $266,186, which is                
          greater than the amount reported by them as taxable income by               
          $137,221.  Petitioners do not contest either the fact that they             
          had owned and operated Playa Azul, or the fact that their bank              
          deposits are in excess of their taxable income by the amount                
          claimed by respondent.                                                      






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