Terence M. Bennett - Page 15

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            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.                                                                  




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