Larry L. Bennett - Page 6

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          using the BLS data.  See id.  We find that respondent's recon-              
          struction of petitioner's income using the BLS statistics was               
          reasonable under these circumstances.                                       
               Petitioner argues that respondent's determination is                   
          arbitrary and excessive, and therefore respondent has the burden            
          of proving that he had taxable income.  See Day v. Commissioner,            
          975 F.2d 534, 537 (8th Cir. 1992), affg. in part and revg. in               
          part T.C. Memo. 1991-140.  Petitioner bears the burden of proving           
          that the determination is arbitrary and excessive.  Id.  While we           
          agree with some of petitioner's statements of the law, we                   
          disagree with petitioner's conclusion as it applies to this                 
          case.2                                                                      
               In certain cases, courts will not sustain a deficiency                 
          determination unless there is some predicate evidence that the              
          taxpayer received income from an activity.  United States v.                
          Janis, 428 U.S. 433, 441-442 (1976); Day v. Commissioner, supra             
          at 537; Anastasato v. Commissioner, 794 F.2d 884, 887 (3d. Cir.             
          1986), vacating T.C. Memo. 1985-101.  The evidentiary foundation            



               2Petitioner also argues that we lack subject matter juris-             
          diction because the notice of deficiency was invalid.  See Scar             
          v. Commissioner, 814 F.2d 1363 (9th Cir. 1987), revg. 81 T.C. 855           
          (1983).  In this case, the notice of deficiency explains respon-            
          dent's determinations in detail, including the basis for, and               
          computation of, the income determinations.  We therefore reject             
          this argument and conclude that the notice of deficiency is                 
          valid.  See Campbell v. Commissioner, 90 T.C. 110 (1988).                   




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