Richard Henry and Carmen M. Strickland - Page 5




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          theory of a third party’s malicious information instigating the             
          audit.  As a general rule, we do not look behind the deficiency             
          notice.  See Greenberg’s Express, Inc. v. Commissioner, 62 T.C.             
          324, 330 (1974).  The Court of Appeals for the Ninth Circuit has            
          recognized an exception to this rule and has looked behind the              
          notice of deficiency in cases involving unreported income where             
          the Commissioner introduced no substantive evidence but rested on           
          the presumption of correctness and the taxpayer challenged the              
          notice of deficiency on the grounds that it was arbitrary.  See             
          Weimerskirch v. Commissioner, 596 F.2d 358 (9th Cir. 1979), revg.           
          67 T.C. 672 (1977).  This exception to the rule is not applicable           
          to the instant case; therefore, we shall not look behind the                
          deficiency notice to evaluate the audit procedure.  There is no             
          inherent evil residing in the fact that the Commissioner may                
          institute an audit based on information received from a third               
          party.  We find petitioner’s claims of injury and request for               
          damages to be either without merit or without our jurisdiction.             
               The remaining matter in this case is whether petitioner is             
          entitled to the Schedule C car and truck expense deductions he              
          claimed.  Initially, we observe that petitioner bears the burden            
          of proving by a preponderance of evidence that the Commissioner’s           
          disallowance was in error.  See Olton Feed Yard, Inc. v. United             
          States, 592 F.2d 272, 275 (5th Cir. 1979) (citing Helvering v.              
          Taylor, 293 U.S. 507, 515 (1935)).  Petitioner has presented no             






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