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register Store”. On brief, respondent points out other
contradictions in her testimony. Assuming she told the same
story to respondent’s agents responsible for the statutory
notice, we do not believe it was arbitrary and erroneous for
those agents to disbelieve petitioner. Petitioner has failed to
prove that respondent’s determinations of deficiencies in tax for
the years in question were arbitrarily made.
C. Burden of Proof
The general rule is that the burden of proof is upon the
taxpayer, Rule 142(a), which the taxpayer must carry by a
preponderance of the evidence, e.g., Schaffer v. Commissioner,
779 F.2d 849, 858 (2d Cir. 1985), affg. in part and remanding
Mandina v. Commissioner, T.C. Memo. 1982-34. This case involves
unreported income, however, and, in cases of unreported illegal
income, we require the Commissioner to provide a minimal
evidentiary foundation supporting his determination of unreported
income or else the burden of going forward with the evidence
shifts to him. E.g., Berkery v. Commissioner, 91 T.C. 179, 186-
187 (1988), affd. without published opinion 872 F.2d 411 (3d Cir.
1989). Certain of the Courts of Appeals require such a showing
even if the unreported income is not from illegal sources. See,
e.g., Portillo v. Commissioner, 932 F.2d 1128, 1133 (5th Cir.
1991), revg. in part and remanding T.C. Memo. 1990-68; Anastasato
v. Commissioner, 794 F.2d 884, 887 (3d Cir. 1986), vacating and
remanding T.C. Memo. 1985-101. The position of the Court of
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