Peter and Mary Possas - Page 8




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          unreported income of $12,815 ($19,715 x 65 percent).4                       
          Advertising Expense Deduction for 1995                                      
               The examiner allowed the claimed advertising expense                   
          deduction of $29,585 in full for 1995.  The examiner compared Mr.           
          Possas’s wages in 1996 ($92,657.87) to his advertising expenses             
          in 1996 ($22,227), and applied this ratio to Mr. Possas’s wages             
          in 1995 ($108,867.57).                                                      
               Respondent had not questioned the advertising expense                  
          deduction for 1995 before trial, and until the morning of trial,            
          petitioners had not produced records substantiating the expense.            
          At trial, respondent claimed that petitioners were not allowed              
          $24,429 of the claimed expense deduction.                                   
                                     Discussion                                       
          1.  Burden of Proof                                                         
               Generally the taxpayer bears the burden of proof.  Rule                
          142(a)(1).  If the Commissioner raises an issue that was not                
          raised in the notice of deficiency, the Commissioner bears the              
          burden of proof with respect to that issue.  Id.                            
               When the Commissioner determines that a taxpayer received              
          unreported income, the taxpayer bears the burden of proof if the            
          determination in the notice of deficiency is “supported by ‘some            



               4  Respondent reconstructed petitioners’ 1995 omitted income           
          using the unexplained deposits for 1996.  As indicated,                     
          respondent conceded this adjustment for the 1995 tax year before            
          trial.                                                                      





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