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determinations are based upon alleged unreported income the
burden of proof shifts to respondent.
Respondent acknowledges that when allegations of unreported
income are made, respondent must show some minimal evidence
linking the taxpayer to that income before the presumption of
correctness attaches to the notice. Respondent believes that the
burden of proof remains with petitioner because evidence linking
him to income-producing activity has been provided.
In general, the Commissioner's determinations contained in a
notice of deficiency are entitled to a presumption of
correctness, and the taxpayer has the burden of proving them
incorrect.3 See Rule 142(a); United States v. Janis, 428 U.S.
433, 441-442 (1976); Welch v. Helvering, 290 U.S. 111, 115
(1933); Gold Emporium, Inc. v. Commissioner, 910 F.2d 1374, 1378
(7th Cir. 1990), affg. Malicki v. Commissioner, T.C. Memo.
1988-559. As a general rule, we do not look behind the statutory
notice to examine the evidence used in making the determination.
See Petzoldt v. Commissioner, 92 T.C. 661, 688 (1989);
3 The Internal Revenue Service Restructuring & Reform Act
of 1998 (RRA 1998), Pub. L. 105-206, sec. 3001, 112 Stat. 685,
724-727, added sec. 7491, which shifts the burden of proof to the
Secretary in certain circumstances. Sec. 7491, however, is
applicable to "court proceedings arising in connection with
examinations commencing after the date of the enactment of this
Act." RRA 1998 sec. 3001(c). The RRA was enacted on July 22,
1998, while the petition and amended petition in this case were
filed before July 22, 1998.
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