Hans C. Sherrer - Page 34




                                        -34-                                          
               C.  Holding on the Fraud Additions                                     
               We find that the evidence clearly and convincingly proves              
          that petitioner's failure to file an income tax return for each             
          of the years 1989-92 was fraudulent within the meaning of section           
          6651(f).  Respondent's determination that the 75-percent fraud              
          addition under section 6651(a) and (f) applies to each of the               
          years 1989-92 is sustained.                                                 
          III. Should Respondent's Determinations of Petitioner's                     
               Unreported Income for 1993 and 1994 Be Sustained?                      
               Respondent did not use the "specific items" method to                  
          reconstruct petitioner's income for 1993 and 1994.  Instead,                
          respondent determined petitioner's income by reference to average           
          cost-of-living survey information obtained from the Bureau of               
          Labor Statistics (BLS).  Using tables that classify the BLS                 
          statistics according to age, size of consumer unit, occupation,             
          and location, respondent determined that petitioner had a cost of           
          living--and therefore must have had net business income--of                 
          $34,533 and $35,638, in 1993 and 1994 respectively.                         
          We sustain respondent's determinations of deficiencies in                   
          petitioner's tax for 1993 and 1994, for the following reasons.              
               A.  Reasonable Use of BLS Statistics                                   
               In certain circumstances, the Commissioner may use cost of             
          living statistics, including BLS survey information, to                     
          reconstruct a taxpayer's income.  See Giddio v. Commissioner, 54            
          T.C. 1530 (1970);  Bennett v. Commissioner, T.C. Memo. 1998-96.             
          As we stated in Giddio v. Commissioner, supra at 1533:                      




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