Edward Nathan Levine - Page 11

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               At trial, petitioner admitted that in 1987 and 1988 he                 
          rented the safe deposit boxes and that he put the bundles of cash           
          into the boxes; however, petitioner argues that as there is no              
          evidence that he was engaged in any illegal income-producing                
          activity during 1987 and 1988, respondent has no grounds for                
          charging him with unreported income for those years.  Petitioner            
          therefore is arguing implicitly that respondent's determination             
          is arbitrary and erroneous.                                                 
               In the usual case, a statutory notice of deficiency carries            
          with it a presumption of correctness, and petitioner would have             
          the burden of proving that respondent's determinations are                  
          erroneous.  Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115              
          (1933).  Courts have recognized a limited exception to this                 
          general rule in cases involving unreported illegal income where             
          respondent introduced no substantive evidence but rested on the             
          presumption of correctness, and the taxpayer challenged the                 
          notice of deficiency.  Weimerskirch v. Commissioner, 596 F.2d 358           
          (9th Cir. 1979), revg. 67 T.C. 672 (1977); see also Dellacroce v.           
          Commissioner, 83 T.C. 269, 280 (1984); Llorente v. Commissioner,            
          74 T.C. 260, 264 (1980), affd. in part and revd. in part 649 F.2d           
          152 (2d Cir. 1981); Jackson v. Commissioner, 73 T.C. 394 (1979).            
               We are satisfied that Weimerskirch v. Commissioner, supra,             
          and its progeny are distinguishable.  In Weimerskirch v.                    
          Commissioner, supra, respondent determined that the taxpayer had            
          a deficiency in his income tax based upon a revenue agent's                 
          finding that the taxpayer omitted income derived from heroin                



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