- 15 - establishing that the determination is arbitrary and erroneous. See Helvering v. Taylor, 293 U.S. 507, 515 (1935). Several Courts of Appeals recognize an exception to this general rule where the Commissioner determines that the taxpayer received income that was not reported on the taxpayer's return. In these instances, the Commissioner must first present "'some predicate evidence connecting the taxpayer to the charged activity.'" Anastasato v. Commissioner, 794 F.2d 884, 887 (3d Cir. 1986) (quoting Gerardo v. Commissioner, 552 F.2d 549, 554 (3d Cir. 1977)), vacating and remanding T.C. Memo. 1985-101.11 In any event, respondent's notice of deficiency here is entitled to the traditional presumption of correctness. See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Respondent has clearly produced sufficient "predicate evidence" linking petitioner to the sale proceeds in this case. See Anastasato v. Commissioner, supra at 887. Respondent produced evidence that: (1) Petitioner had possession and control over the five automobiles in issue from the date of acquisition until their sale to Mr. Harley in July 1988; (2) petitioner provided Mr. Harley with bills of sale listing himself as the owner of the 11The Court of Appeals for the First Circuit (to which this case is appealable) has held that "in a deficiency or refund suit, the burdens of going forward and of ultimate persuasion are always on the taxpayer and never shift to the Commissioner." United States v. Rexach, 482 F.2d 10, 17 (1st Cir. 1973); see also Delaney v. Commissioner, 99 F.3d 20, 23 (1st Cir. 1996), affg. T.C. Memo. 1995-378.Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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