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There are exceptions to the general rule that the
Commissioner's determination is presumed to be correct. One such
exception arises in cases involving unreported income where the
taxpayer challenges the notice of deficiency on the ground that
it is arbitrary, and the Commissioner fails to substantiate her
determination with predicate evidence. Sealy Power, Ltd. v.
Commissioner, 46 F.3d 382, 386 (5th Cir. 1995), affg. in part,
revg. in part, and remanding in part T.C. Memo. 1992-168;
Portillo v. Commissioner, 932 F.2d at 1133.4
As indicated, petitioner moves to shift the burden of proof
in the instant case based on his assertion that the notice of
deficiency is arbitrary. Respondent counters that petitioner's
motion should be denied, and his petition fails to state a
justiciable claim for relief. We agree.
Rule 34(b)(4) requires that a petition filed in this Court
contain clear and concise assignments of each and every error
which the taxpayer alleges to have been committed by the
Commissioner in the determination of the deficiency and the
additions to tax in dispute. Rule 34(b)(5) further requires that
the petition contain clear and concise lettered statements of the
facts on which the taxpayer bases the assignments of error. See
Jarvis v. Commissioner, 78 T.C. 646, 658 (1982). Any issue not
raised in the pleadings is deemed to be conceded. Rule 34(b)(4);
Jarvis v. Commissioner, supra at 658 n.19; Gordon v.
4 An appeal in the instant case would lie in the Court of
Appeals for the Fifth Circuit.
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