- 31 - did not observe personally the counting of the cash at the restaurants. Nakamura prepared Toraya's tax returns for the years ending 1988, 1989, 1990, and 1991. In preparing Toraya's tax returns, Nakamura believed that he was picking up all taxable sales. He did not have waitress tags from daily sales, cash receipt records, or bills and statements from the restaurants. Toraya filed its 1988 calendar year tax return on or about July 21, 1990. It filed its 1989 calendar year tax return on or about August 26, 1990. Toraya had an extension to file the 1989 return to September 15, 1990. Respondent concedes that Toraya timely filed its 1989 return. OPINION The Commissioner's deficiency determination is normally entitled to a presumption of correctness, Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir. 1985), and the burden of proving the determination erroneous generally rests on the taxpayer, Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933). However, in the case of unreported income, the rule in the Court of Appeals for the Ninth Circuit (to which this case is appealable) is that the presumption in favor of the Commissioner arises only where it is supported by a minimal factual foundation linking the taxpayer with income-producing activity. See, e.g., Palmer v. United States, 116 F.3d 1309, 1313 (9th Cir. 1997); Rapp v. Commissioner, supra; Delaney v. Commissioner, 743 F.2d 670, 671Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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