- 25 -- 25 - ing the presentation of different evidence is not a new matter requiring the shifting of the burden of proof to respondent. See Seagate Tech., Inc. & Consol. Subs., v. Commissioner, 102 T.C. 149, 169 (1994); Foster v. Commissioner, supra at 197. On the instant record, we reject petitioners' contention that respondent raised a matter as to which respondent has the burden of proof in arguing that petitioners have unreported income for 1989 and 1990 resulting from the deposits of misappropriated funds.15 During the course of respondent's examination of petitioners' returns for 1989 and 1990, respondent did not have adequate books or records to determine whether 15 Petitioners rely on dicta in Big "D" Development Corp. v. Commissioner, T.C. Memo. 1971-148, affd. 453 F.2d 1365 (5th Cir. 1972), to support that contention. That case held that, under the facts presented, respondent had not raised a matter as to which respondent had the burden of proof because "respondent merely narrowed an issue after taking a broad position in the statutory notice." The Court further stated in dicta in that case on which petitioners rely that "It would be otherwise where respondent's determination in a statutory notice is narrowly drawn and, after the matter has been petitioned to this Court, respondent advances new grounds not directly or implicitly within the ambit of the determination made in the notice." Id. That language does not in any way indicate that in cases, such as the instant case, where respondent (1) reconstructs a taxpayer's income by using the bank deposits method, (2) determines in the notice of deficiency, based on the application of that method, that certain deposits constitute income, and (3) sets forth her assumption therein as to the source of that income, respondent necessarily is advancing "new grounds not directly or implicitly within the ambit of the determination made in the notice", id., when she thereafter argues that a portion of those deposits is income from a source different from that assumed in the notice of deficiency.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: May 25, 2011