Walton A. Sutherland - Page 15

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          Circuit, the presumption of correctness will not be given effect            
          unless the Commissioner produces "evidence linking the taxpayer             
          to the tax-generating activity in cases involving unreported                
          income, whether legal or illegal."  Anastasato, supra at 887.  In           
          these cases, respondent's notice of deficiency for 1987 is based            
          on petitioner's failure to report an attorney's fee (or                     
          attorney's referral fee) of $408,318.  We conclude there is                 
          sufficient evidence that petitioner was entitled to an attorney's           
          fee (e.g., the retainer agreement).                                         
               Petitioner claims that respondent lost petitioner's 1987               
          return.  Petitioner, however, has failed to propose any findings            
          of fact in support of that claim, and we have made no such                  
          finding.  Petitioner has failed to carry his burden of proof on             
          that point.  Moreover, even if facts did support that claim,                
          petitioner has failed to show that respondent's determination was           
          arbitrary.  Perhaps respondent had abstracted data from                     
          petitioner's return and no longer needed it.  Indeed, it is                 
          difficult to understand just what petitioner's complaint is.                
          Petitioner is not claiming that he did report the attorney's fee            
          on his return and that respondent is double charging him.                   
          Whether respondent had petitioner's return or not, respondent               
          charged petitioner with income respondent had reason to believe             
          petitioner did not report.  There is nothing arbitrary about                
          that.                                                                       






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