Timothy Nicholls - Page 9

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          ground that copies of petitioner’s bank records obtained by                 
          subpoena from petitioner’s bank, Bank of America NA, show                   
          deposits in 1999 of $31,007.15 and $3,084.51, from Icon Trading,            
          Inc., and with respect to petitioner’s golf instruction business,           
          Count Yogi Co., respectively.  Respondent did not take those                
          deposits into account in his adjustments to petitioner’s income             
          for 1999.  Respondent correctly argues that, nevertheless, bank             
          deposits are prima facie evidence of income.  Tokarski v.                   
          Commissioner, 87 T.C. 74, 77 (1986); see also Factor v.                     
          Commissioner, 281 F.2d 100, 116, n.28 (9th Cir. 1960), affg. T.C.           
          Memo. 1958-94.  Respondent asks for no increased deficiency for             
          1999 but only that we sustain the deficiency of $3,299 that he              
          determined.  Petitioner made no objection to the Bank of America            
          NA records on the grounds of relevance when they were proffered             
          by respondent, and we interpret that failure as implying                    
          petitioner’s consent to try the issue of his unreported income              
          from bank deposits described in those records.  See Rule                    
          41(b)(1).  We find that, for 1999, petitioner failed to report              
          items of income of $31,007.15 and $3,084.51, as evidenced by                
          respondent’s exhibits showing bank deposits in those amounts.               
               Respondent did not err in determining the deficiencies.                
          II.  Additions to Tax                                                       
               A.  Introduction                                                       
               Section 6651(a)(1) provides for an addition to tax in the              
          event a taxpayer fails to file a timely return (determined with             





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