Shigenori Kudo and Motomi Kudo, et al. - Page 31

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          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, 671             




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