Don C. and Judy Montgomery - Page 21

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             T.C. Memo. 1997-6; Senter v. Commissioner, T.C. Memo. 1995-              
             311.  On rare occasions, when such a minimal evidentiary                 
             foundation for the deficiency determination is not present,              
             this and other courts have not given effect to the                       
             presumption of correctness and have shifted the burden of                
             going forward with the evidence from the taxpayer to the                 
             Commissioner on the ground that the notice of deficiency is              
             arbitrary, i.e., without rational foundation in fact, or                 
             excessive.  See Llorente v. Commissioner, 649 F.2d 152 (2d               
             Cir. 1981), affg. in part, revg. in part, and remanding 74               
             T.C. 260 (1980); Weimerskirch v. Commissioner, supra;                    
             Dellacroce v. Commissioner, 83 T.C. 269 (1984); Jackson                  
             v. Commissioner, 73 T.C. 394 (1979).                                     
                  This is not such a case.  In this case, there is ample              
             evidence linking petitioner to the funds which form the                  
             basis of the deficiency.  Petitioner controlled and signed               
             checks drawn on H&B's bank accounts at First Interstate and              
             Community Bank, and H&B's drivers gave petitioner the cash               
             and cashier's checks they received from Trans State.  Thus,              
             we find no basis to conclude that the notice of deficiency               
             is arbitrary or without foundation.  Accordingly,                        
             petitioners bear the burden of proving that respondent's                 
             determinations are erroneous.  See Rule 142(a).                          







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