Eddie M. and Cynthia L. Chandler - Page 10

                                   - NEXTRECORD  -                                    
               Normally, the Court does not look behind a notice of                   
          deficiency to examine the evidence used by the Commissioner in              
          making the deficiency determinations.  Greenberg's Express, Inc.            
          v. Commissioner, 62 T.C. 324, 327 (1974).  However, whenever the            
          notice of deficiency is found to be arbitrary, excessive, or                
          without rational foundation, the burden of going forward with the           
          evidence is borne by the Commissioner.  Helvering v. Taylor, 293            
          U.S. 507 (1935).  This exception to the general rule has been               
          applied in cases involving unreported income from illegal                   
          activities.  E.g., Dellacroce v. Commissioner, 83 T.C. 269, 287             
          (1984).                                                                     
               Petitioners seek to invoke the foregoing exception to the              
          general rule by arguing that respondent's deficiency                        
          determination for 1990 "is not supported by the proper foundation           
          of substantive evidence".  Weimerskirch v. Commissioner, 596 F.2d           
          358, 362 (9th Cir. 1979).  However, for the following reasons, we           
          do not think that such determination is "a 'naked' assessment               
          without any foundation." See United States v. Janis, 428 U.S.               
          433, 441 (1976).                                                            
               First, 2 days after his criminal trial began, petitioner               
          pleaded guilty to the charge that from "in or about June 1990 to            
          in or about September 1990, within the Northern District of                 
          Alabama, * * * [petitioner] did unlawfully, knowingly and                   
          intentionally possess with the intent to distribute and                     
          distributed marijuana, a Schedule I controlled substance, in                




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