- 8 - income. Sec. 446(b); Holland v. United States, 348 U.S. 121 (1954); Webb v. Commissioner, 394 F.2d 366, 371-372 (5th Cir. 1968), affg. T.C. Memo. 1966-81. The reconstruction of income need only be reasonable in light of all surrounding facts and circumstances. Giddio v. Commissioner, 54 T.C. 1530, 1533 (1970). The Commissioner is given latitude in determining which method of reconstruction to apply when a taxpayer fails to maintain records. Petzoldt v. Commissioner, 92 T.C. 661, 693 (1989). The Commissioner's determinations generally are presumed correct, and the taxpayer bears the burden of proving that those determinations are erroneous.7 Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933); Durando v. United States, 70 F.3d 548, 550 (9th Cir. 1995). The U.S. Court of Appeals for the Ninth Circuit, to which an appeal of this case would lie, has held that in order for the presumption of correctness to attach to the notice of deficiency in unreported income cases,8 the 7 Petitioners argue that, pursuant to sec. 7491(b), respondent bears the burden of proof because respondent used statistical methods to reconstruct petitioners’ income. Sec. 7491(b) was enacted as part of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, sec. 3001(c), 112 Stat. 685, 726, and is effective for examinations commenced on or after July 22, 1998. See Higbee v. Commissioner, 116 T.C. ___, ___ (2001) (slip op. at 5); RRA 1998 sec. 3001(c), 112 Stat. 685, 727. The examination in this case commenced prior to July 22, 1998. Accordingly, sec. 7491 is inapplicable. 8 Although Weimerskirch v. Commissioner, 596 F.2d 358 (9th (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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