Joseph F. and Camille T. Uddo - Page 10

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                    a factor to be considered in assessing respondent's                                                                                                    
                    justification.  Hanson v. Commissioner, supra at 1156.                                                                                                 
                              Petitioners contend that in the notice of deficiency                                                                                         
                    respondent "merely alleged" unreported income based on a Form                                                                                          
                    1099-R issued by a third party.  Essentially, petitioners argue                                                                                        
                    that there was an inadequate factual basis for the determination                                                                                       
                    and that, consequently, respondent's position was not                                                                                                  
                    substantially justified.  This argument is premised upon Portillo                                                                                      
                    v. Commissioner, 932 F.2d 1128 (5th Cir. 1991) (Portillo I),                                                                                           
                    affg. in part, revg. in part and remanding T.C. Memo. 1990-68,                                                                                         
                    and its companion case Portillo v. Commissioner, 988 F.2d 27 (5th                                                                                      
                    Cir. 1993) (Portillo II), revg. and remanding T.C. Memo. 1992-99.                                                                                      
                    For the reasons that follow, petitioners' reliance on these cases                                                                                      
                    is misplaced.                                                                                                                                          
                              In Portillo I, there was a $24,505 discrepancy between the                                                                                   
                    amount reported on the taxpayer's return ($10,800) and the amount                                                                                      
                    reported by a third party payor (Navarro) on a Form 1099                                                                                               
                    ($35,305).  During the audit, the taxpayer conceded his failure                                                                                        
                    to report $3,125 in income received from Navarro, but denied                                                                                           
                    receiving more than $13,925 from him.  Respondent's agent then                                                                                         
                    contacted Navarro, who was able to produce copies of checks paid                                                                                       
                    to the taxpayer in the amount of $13,925, but did not have copies                                                                                      
                    of checks for the remaining $21,380 reported on the Form 1099.                                                                                         
                    Thereafter, respondent issued a notice of deficiency.  The Court                                                                                       
                    of Appeals for the Fifth Circuit found that respondent had                                                                                             




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