- 27 - based on unreported income. In determining the amounts stated in the notices of deficiency, respondent took a protective position, attributing the same income to more than one petitioner. Generally, the notice of deficiency is afforded a presumption of correctness, and the taxpayer has the burden of proof as to the amounts of the deficiencies. Rule 142(a); Anastasato v. Commissioner, 794 F.2d 884, 886-887 (3d Cir. 1986), vacating and remanding T.C. Memo. 1985-101. The Court of Appeals for the Third Circuit, to which an appeal of the instant cases would lie,11 will not give effect to the presumption of correctness without some predicate evidence connecting the taxpayer to the charged activity. Id. at 887; Gerardo v. Commissioner, 552 F.2d 549, 554 (3d Cir. 1977), affg. in part, revg. in part, and remanding T.C. Memo. 1975-341; Berkery v. Commissioner, 91 T.C. 179, 195 (1988), affd. without published opinion 872 F.2d 411 (3d Cir. 1989). If the taxpayer rebuts the presumption by showing the determination is arbitrary and erroneous, the presumption disappears and the burden of going forward shifts to the Commissioner, but the Court of Appeals for the Third Circuit has held that the ultimate burden of proof or persuasion remains with the taxpayer. Anastasato v. Commissioner, supra; Sullivan v. United States, 618 F.2d 1001, 1008 (3d Cir. 1980). The Commissioner has the right to make 11 See Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971).Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
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