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filed a response to respondent's motion to dismiss in which he
asserts that respondent's motion should be stricken.
Petitioner's response states in pertinent part:
The Commissioner by her alleged Notice of
Deficiency has failed to prove that the petitioner was
engaged in any income-producing activity during the
years of the deficiency notice. Nor is there any
evidence that the respondent's determination was based
on information, other than that of presumption,
concerning petitioner's alleged income-producing
activities during the years in issue. Except for the
explanation in the notice of deficiency, there is no
evidence showing the basis for respondent's computation
of petitioner's income and there is no evidence to show
that such income has been derived from an income-
producing or revenue taxable activity. From the sparse
facts presented by the record, it is apparent that
there is no evidence presented by the Commissioner
regarding whether petitioner had taxable income during
the years in issue. Indeed, the only facts before this
Court relate to the events leading up to the notice of
deficiency and respondent's method of computing the
deficiencies. Under these circumstances, the
presumption of correctness that normally attaches to
the notice of deficiency and the proper allocation of
the burden of producing evidence and the burden of
proof become critical. The issue before this Court
that must be decided is whether these determinations
are entitled to the normal presumption of correctness
and if not, who bears the burden of proof.
The remainder of petitioner's reply is simply a long quotation of
the portion of this Court's opinion in Senter v. Commissioner,
T.C. Memo. 1995-311, discussing Portillo v. Commissioner, 988
F.2d 27 (5th Cir. 1993), revg. T.C. Memo. 1992-99, and Portillo
v. Commissioner, 932 F.2d 1128 (5th Cir. 1991), affg. in part and
revg. in part T.C. Memo. 1990-68 (collectively, the Portillo
cases).
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