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occurs is that, as a procedural matter, the statutory notice of
deficiency is not entitled to the presumption of correctness and,
therefore, the burden of going forward with the evidence is on
the Commissioner. See also Dellacroce v. Commissioner, T.C.
Memo. 1982-243 (if a statutory notice of deficiency is found to
be arbitrary, we will not enter a decision for the taxpayer
without weighing the evidence).
Furthermore, the Court's summary judgment procedures are
adapted from rule 56(a) and (b) of the Federal Rules of Civil
Procedure. Explanatory Note to Rule 121, Tax Court Rules of
Practice and Procedure, 60 T.C. 1057, 1127. Rule 56 contemplates
a summary judgment for a part or all of the claim made in the
prayer for relief in the complaint; it does not contemplate a
summary judgment on evidentiary matters en route to that relief.
6 Moore, Moore's Federal Practice, par. 56.20 [3.-2], at 56-691
(1995-96). Because Charles' motion for summary judgment contains
arguments pertaining to the shifting of the burden of going
forward, it seemingly falls within the ambit of the rule
prohibiting summary judgments on evidentiary matters. Charles'
arguments relating to burden of proof and the burden of going
forward with the evidence are more appropriately raised in the
trial setting; they do not entitle him to summary judgment.
The pleadings establish that there are issues of fact to be
decided; e.g., whether petitioners received the illegal profits
and, if so, whether Charles fraudulently intended to avoid
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