James M. Nitschke and Patricia S. Nitschke - Page 5




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          1.274-5T(b), Temporary Income Tax Regs., 50 Fed. Reg. 46006 (Nov.           
          6, 1985).                                                                   
               Petitioners argue that sections 162 and 274(d) should not be           
          applied in this case because respondent did not raise these                 
          issues during the audit of their return.  Petitioners further               
          assert that the “substantiation issue” was not raised by                    
          respondent until presented at trial.  Subject to exceptions                 
          inapplicable to this case, this Court does not look behind the              
          statutory notice of deficiency:  A trial before this Court is a             
          proceeding de novo, and our determination as to a taxpayer's tax            
          liability is based upon the merits of the case.  See Greenberg’s            
          Express, Inc. v. Commissioner, 62 T.C. 324, 327-328 (1974).                 
          Furthermore, the notice of deficiency in this case specifically             
          stated that the various business expenses were disallowed because           
          it had not been established that each amount “was for an ordinary           
          and necessary business expense, or was expended for the purpose             
          designated.”  This statement raises issues under both section               
          162(a)--whether the expenses were ordinary and necessary--and               
          section 274(d)--whether the expenses were properly substantiated,           
          i.e., whether petitioners established that the amounts were                 
          expended for the purpose designated.                                        
               Petitioners also argue that the burden of proof in this case           
          should be shifted to respondent because petitioners presented               
          credible evidence with respect to factual issues.  Although                 






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