Pennel Phlander Irwin - Page 7

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            however, "We perceive no need to refute these arguments with                                  
            somber reasoning and copious citation of precedent; to do so                                  
            might suggest that these arguments have some colorable merit."                                
            Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).                                   


                        (A)  Arbitrariness of respondent's determinations in                              
            notice of deficiency                                                                          
                  Petitioner repeatedly claims that respondent's notice of                                
            deficiency was "arbitrary, capricious, and without foundation".                               
            Generally, the notice of deficiency is presumed correct, and the                              
            taxpayer carries both the burden of proof and the burden of going                             
            forward with evidence.  Dellacroce v. Commissioner, 83 T.C. 269,                              
            280 (1984).  When a taxpayer establishes that a statutory notice                              
            is arbitrary or without foundation, however, the Commissioner                                 
            bears the burden of going forward with evidence.  Alanis v.                                   
            Commissioner, T.C. Memo. 1995-263.  The cases dealing with                                    
            arbitrary determinations, however, involve issues of omitted                                  
            income, where the Commissioner failed to introduce any                                        
            substantive evidence indicating that the taxpayer had received                                
            income as determined in the notice of deficiency.  E.g.,                                      
            Weimerskirch v. Commissioner, 596 F.2d 358 (9th Cir. 1979), revg.                             
            67 T.C. 672 (1977).  In this case, respondent's determination was                             
            based upon petitioner's failure to establish that he is entitled                              
            to claimed deductions.                                                                        







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