Colin Kelly and Sharon K. Kaufman - Page 7




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          during the years in issue without any evidence of limitation on             
          their use.  We are not persuaded by petitioner’s belated attempts           
          to disavow the lists of income items provided to respondent’s               
          agent during the audit of petitioners’ returns for 1992 and 1993.           
          Petitioners’ inability to prove their contentions is undoubtedly            
          of their own making.                                                        
               Petitioners are required to maintain records from which                
          their tax liability may be ascertained; in the absence of                   
          adequate books and records, respondent may use a reasonable                 
          method, such as a bank deposits analysis, to reconstruct                    
          petitioners’ income.  See Estate of Mason v. Commissioner, 64               
          T.C. 651, 656, 658-659 (1975), affd. 566 F.2d 2 (6th Cir. 1977).            
          Respondent did so in this case.  Contrary to petitioners’                   
          contention, respondent does not have to show that legal fees                
          received during a taxable year were “earned” during the same                
          year.  See Miller v. Commissioner, T.C. Memo. 1989-128, affd.               
          without published opinion 909 F.2d 509 (8th Cir. 1990).  That               
          burden is on petitioners, and they have failed to meet it.                  
               Section 7491(a), cited by petitioners, does not apply                  
          because the examination was begun in 1996, prior to the effective           
          date of the burden of proof rule provided by the section.  In any           
          event, the provisions of section 7491(a) would not help                     
          petitioners’ case.  See Higbee v. Commissioner, 116 T.C. __                 
          (June 6, 2001).                                                             






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