Leo M. Ryan, et al. - Page 27

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          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).                                                  



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