Walter T. McGee - Page 12

                                       - 12 -                                         
          Portillo v. Commissioner, supra, the Commissioner issued a notice           
          of deficiency based on a Form 1099 filed with the Commissioner.             
          The U.S. Court of Appeals for the Fifth Circuit held that the               
          notice of deficiency was arbitrary because the Commissioner                 
          failed to show the requisite indicia that the taxpayer received             
          unreported income, and the Commissioner knew that the employer              
          who issued the Form 1099 to the taxpayer lacked records to                  
          support the amounts contained in the Form 1099.  Id. at 1131,               
          1133-1134.  Portillo is distinguishable from the instant case               
          because here petitioner concedes that he received the �570,000              
          bank draft; respondent checked A.T.O.'s books and records, which            
          did not show that A.T.O. had received the settlement, and                   
          petitioner was the last person to whom respondent could trace the           
          settlement funds.                                                           
               We have considered the other cases that petitioner cites in            
          his motion, reply to respondent's objection, and statement under            
          Rule 50(c), including Sealy Power Ltd. v. Commissioner, supra,              
          (we may shift burden to Commissioner if notice of deficiency is             
          arbitrary); Powers v. Commissioner, 100 T.C. 457 (1993), affd. in           
          part, revd. in part and remanded in part 43 F.3d 172 (5th Cir.              
          1995) (litigation costs awarded to taxpayer); and Durkin v.                 
          Commissioner, 87 T.C. 1329, 1402 (1986), affd. 872 F.2d 1271 (7th           









Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next

Last modified: May 25, 2011