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The alleged Notice of Deficiency has fail [sic] to
prove that the petitioner was engaged in any income-
producing activity during the years of the deficiency
notice. Nor is their [sic] any evidence that the
respondent's determination was based on information,
other than that of presumption, concerning petitioner's
alleged income-producing activities during the years in
issue.
Petitioner then contends that respondent bears the burden of
proof, and he offers what purports to be a memorandum of law on
such matter. However, petitioner's "memorandum of law" is
nothing other than an extended excerpt from this Court's opinion
in Senter v. Commissioner, T.C. Memo. 1995-311, which has been
subtly modified to make it appear as if it were petitioner's own
submission.
Respondent's Rule 40 Motion and Subsequent Developments
As indicated, respondent filed a Motion To Dismiss For
Failure To State A Claim Upon Which Relief Can Be Granted.2 On
2 Respondent subsequently supplemented her motion to dismiss
in two respects. First, respondent supplemented her motion to
account for an error in the determination of the addition to tax
under sec. 6654(a) for 1991. In this regard, respondent
acknowledges that the computation of such addition should take
into account two payments made by petitioner in 1992 in the
aggregate amount of $3,000. Accordingly, such addition has been
reduced from $1,098 to $169.83.
Second, respondent supplemented her motion to decrease the
total amount of income that petitioner failed to report for 1992.
In this regard, respondent now asserts that petitioner failed to
report $34,726; i.e., the amount disclosed by petitioner as
"Total income" on petitioner's Form 1040X for 1992. Thus:
(continued...)
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