Kenneth Frank Diller - Page 13




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               Petitioner testified that his listings of expenses contained           
          some “leftover” expenses from Welding, some fuel expenses related           
          to KD Technology, and some expenses related to his rental                   
          activity.  As he failed to segregate his expenses, he was unable            
          to identify the expenses attributable to each activity.                     
               Because petitioner has not shown that he was engaged in an             
          activity for profit under the name of KD Fabricating, has not               
          shown for what purpose the claimed expenses might otherwise be              
          deductible, and if deductible, has not provided proper                      
          substantiation, he has not shown that he is entitled to any                 
          deductions other than those agreed to by respondent.3  See Lerch            
          v. Commissioner, 877 F.2d 624, 629 (7th Cir. 1989), affg. T.C.              
          Memo. 1987-295.                                                             
          Additions to Tax                                                            
               Respondent bears the burden of production with respect to              
          any addition to tax.  Sec. 7491(c).  In order to meet this                  
          burden, respondent must produce evidence sufficient to establish            
          that it is appropriate to impose the addition to tax.  Higbee v.            
          Commissioner, 116 T.C. 438, 446-447 (2001).                                 
               Addition to Tax Under Section 6651(a)(1)                               
               The parties agree that petitioner did not file a Federal tax           
          return for 2002.  Respondent made a return for petitioner under             


               3Petitioner may be entitled to deduct legal fees as                    
          discussed supra.                                                            





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