Dennis R. Andrews - Page 8

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          deficiency on the grounds that it is arbitrary.4  Portillo v.                
          Commissioner, 932 F.2d 1128, 1133 (5th Cir. 1991), affg. in part,            
          revg. in part and remanding T.C. Memo. 1990-68; Schad v.                     
          Commissioner, 87 T.C. 609, 618 (1986), affd. without published               
          opinion 827 F.2d 774 (11th Cir. 1987); Llorente v. Commissioner,             
          supra at 264; see also Senter v. Commissioner, T.C. Memo. 1995-              
          311.                                                                         
               Petitioner relies on Portillo as support for his position               
          that the notice of deficiency in the instant case is arbitrary               
          and therefore not entitled to the normal presumption of                      
          correctness.  The Court of Appeals for the Fifth Circuit,                    
          however, has recently distinguished Portillo in Parker v.                    
          Commissioner, 117 F.3d 785 (5th Cir. 1997).  As in the instant               
          case, the taxpayers in Parker failed to file income tax returns              
          for the years in issue, yet relied upon Portillo for the                     
          proposition that the usual presumption of correctness should not             
          apply because the Commissioner's determinations of unreported                
          income were based upon Forms 1099 and W-2.  The Court of Appeals             
          for the Fifth Circuit stated:                                                
               In Portillo, the IRS issued a notice of deficiency when                 
               it discovered that the taxpayer had reported                            
               substantially less income from a particular payor than                  

          4    "[T]he reason behind the burden-shifting principle in an                
          unreported income case is that the taxpayer bears the difficult              
          burden of proving the non-receipt of income."  Sealy Power, Ltd.             
          v. Commissioner, 46 F.3d 382, 386 (5th Cir. 1995), affg. T.C.                
          Memo. 1992-168.                                                              




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