Charles R. Harp and April B. Harp - Page 25

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                    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.                                                                                                                                            




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