Zinovy Brodsky - Page 124




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          Trading than gross receipts reported in its 1993 Form 1065, it              
          was possible that some of MZ Trading’s gross receipts for 1993              
          were deposited into bank accounts other than MZ Trading’s bank              
          account(s) or that MZ Trading did not deposit some of those gross           
          receipts.  The statements of Mr. Oliveras in Mr. Oliveras’                  
          summary on which petitioner relies do not establish that any of             
          MZ Trading’s gross receipts for 1993 were shifted or deposited              
          into any of petitioner’s accounts during that year.                         
          Issues Relating to the Burden of Proof                                      
               It is petitioner’s position that respondent has the burden             
          of proving that for each of the years 1991, 1992, and 1993 each             
          of the deposits into petitioner’s accounts that remains at issue            
          is taxable.  In support of that position, petitioner asserts:               
               Section 7522 requires the notice of deficiency to                      
               contain a description of the basis for the commis-                     
               sioner’s tax determinations.  Respondent’s notices of                  
               deficiency are based on the bank deposits analysis, and                
               do not contain a detailed description of the deposits.                 
               Specific items of deposit must be relied on to prove                   
               whether the deposits are nontaxable, which requires the                
               presentation of different evidence to prove specific                   
               items not in the notices of deficiency.  At the same                   
               time, respondent is the party objecting to the presen-                 
               tation of the documents that it prepared detailing the                 
               specific deposits.  Therefore, it is respondent who                    
               should have the burden of proof on these specific                      
               deposit issues, as they are “new matters” within Rule                  
               142(a), United States Tax Court Rules of Practice and                  
               Procedure, and pursuant to the holding of Shea v.                      
               Commissioner, 112 T.C. 14 (1999).                                      
               Section 7522(a) requires that a notice of deficiency “de-              
          scribe the basis” for the tax deficiency.  A new matter is raised           
          when the basis or the theory on which the Commissioner of Inter-            
          nal Revenue (Commissioner) relies was not stated or described in            






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