Craig A. Bratcher - Page 5

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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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