Gregg H. Risner - Page 7

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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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