Mark Sunik and Tamara Sunik - Page 6




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          that the Commissioner's determination is incorrect.2  Rule                  
          142(a); Welch v. Helvering, 290 U.S. 111 (1933).                            
               Petitioners rely on Portillo v. Commissioner, 932 F.2d 1128            
          (5th Cir. 1991), affg. in part and revg. in part T.C. Memo. 1990-           
          68, which held that the Commissioner had a duty to investigate              
          the "bald assertion" contained in a Form 1099 received from a               
          third party to confirm whether it was supported by other                    
          financial records, and the Commissioner's failure to do so                  
          rendered the notice of deficiency arbitrary and erroneous.  Id.             
          at 1134.  The Court of Appeals for the Fifth Circuit, however,              
          has narrowed the holding in Portillo by declining to apply it               
          where the Commissioner does not rely on a statement of a third              
          party to determine that a deficiency exists.  See Woodall v.                
          Commissioner, 964 F.2d 361, 363 (5th Cir. 1992), affg. T.C. Memo.           
          1991-15.  In the instant case, respondent based the determination           
          in the notice of deficiency on petitioners' agreement in the New            
          York consent form to an increase in their New York State income             
          for 1995.  See Sealy Power, Ltd. v. Commissioner, 46 F.3d 382,              
          386 (5th Cir. 1995), affg. in part, revg. in part on other                  
          grounds, and remanding in part T.C. Memo. 1992-168.                         


               2 Internal Revenue Service Restructuring & Reform Act of               
          1998 (RRA 1998), Pub. L. 105-206, sec. 3001, 112 Stat. 685, 726-            
          727, added sec. 7491, which places the burden of proof on the               
          Commissioner in certain circumstances.  Sec. 7491 is applicable             
          to court proceedings arising in connection with examinations                
          commencing after July 22, 1998.  See RRA 1998 sec. 3001(c), 112             
          Stat. 727; Higbee v. Commissioner, 116 T.C. 438, 440 (2001).  The           
          examination in the instant case commenced on Nov. 12, 1997.                 
          Accordingly, sec. 7491 is inapplicable.                                     




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