Mark Sunik and Tamara Sunik - Page 8




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               Assuming, as other courts have required,3 that the                     
          Commissioner must provide an evidentiary foundation for the                 
          determination that a taxpayer has received unreported income, we            
          are satisfied that the New York consent form reflecting an                  
          increase to petitioners' State taxable income for 1995                      
          constitutes predicate evidence in the instant case for                      
          respondent's determination in the notice of deficiency.                     
          Petitioners' admission to an additional State income tax                    
          liability due to unreported income provides a sufficient link to            
          their income-generating acts.  Petitioners argue that the New               
          York consent form is ambiguous and could stem from disallowed               
          deductions.  To the contrary, we note that the language of the              
          New York consent form states that the State audit disclosed an              
          increase in petitioners' income and shows no disallowed                     
          deductions.  Such evidence is sufficient to satisfy any predicate           
          evidence requirement.  Accordingly, we hold that the notice of              
          deficiency in the instant case is presumed correct and the burden           
          of proof is on petitioners.                                                 
               III. Exclusion of Testimony of Petitioners' Witness                    
               Before agreeing to submit the case to the Court as fully               
          stipulated, petitioners argued that they agreed to a settlement             
          with the State of New York Department of Taxation and Finance to            

               3 See Portillo v. Commissioner, 932 F.2d 1128, 1134 (5th               
          Cir. 1991), affg. in part and revg. in part T.C. Memo. 1990-68;             
          Anastasato v. Commissioner, 794 F.2d 884, 887 (3d Cir. 1986),               
          vacating and remanding T.C. Memo. 1985-101; Rapp v. Commissioner,           
          774 F.2d 932, 935 (9th Cir. 1985), affg. an unreported Order of             
          this Court.                                                                 




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