Kevin R. Johnston - Page 20




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          “whipsaw” notices designed to protect respondent’s ability to               
          proceed, if a purported “trust” should be recognized as a                   
          separate taxable entity.  In the circumstances of the case at               
          hand, the notice sent to petitioner was proper.                             
               For this and the other reasons set forth above, we hold that           
          the notice sent to petitioner was valid and that we have                    
          jurisdiction of the case at hand.  Petitioner’s argument to the             
          contrary has no merit.                                                      
               B.  Presumption of Correctness                                         
               In general, a deficiency notice is presumed correct, and the           
          taxpayer has the burden of proving it wrong.  See Rule 142(a);              
          Welch v. Helvering, 290 U.S. 111 (1933).7  There are certain                
          exceptions to this rule, however, where the notice alleges that             
          the taxpayer has received unreported income.                                
               The Court of Appeals for the Ninth Circuit has held in                 
          unreported income cases that the presumption of correctness                 
          applies only where the Commissioner’s determination is supported            
          by some substantive evidence that the taxpayer received the                 
          unreported income.  See Rapp v. Commissioner, 774 F.2d 932, 935             
          (9th Cir. 1985); Weimerskirch v. Commissioner, 596 F.2d 358, 360-           
          361 (9th Cir. 1979), revg. 67 T.C. 672 (1977); Petzoldt v.                  
          Commissioner, 92 T.C. 661, 687-690 (1989) (discussing Court of              


               7 We do not find that the burden-shifting provisions of                
          current sec. 6201(d) or sec. 7491 apply.                                    





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