Yu-Yang Wu - Page 20




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               13(...continued)                                                       
          discussion of the use of statistical methods in legal cases to              
          extrapolate estimates from known samples, see United States v.              
          Shonubi, 895 F. Supp. 460 (E.D. N.Y. 1995) (approving use of                
          statistical methods to determine, based on a sample of four of              
          the 103 balloons swallowed by defendant, that all 103 balloons              
          contained heroin), revd. on other grounds 103 F.3d 1085 (2d Cir.            
          1997).                                                                      
               In the tax context, the Court of Appeals for the Ninth                 
          Circuit rejected the use of statistical methods to assess                   
          deficiencies against a restaurant for failing to withhold and pay           
          sufficient employment taxes on its employees’ tip income.  Fior             
          D’Italia, Inc. v. United States, 242 F.3d 844 (9th Cir. 2001),              
          cert. granted 122 S. Ct. 865 (2002).  However, the Court of                 
          Appeals distinguished the case before it from the presumption               
          that would apply to the use of statistical methods to estimate              
          the unreported tip income received by the employees themselves.             
          The Court of Appeals cited with approval and distinguished the              
          Tax Court’s opinion in McQuatters v. Commissioner, T.C. Memo.               
          1973-240, which upheld the use of statistical methods to recreate           
          the tip income received by waiters who failed to keep proper                
          records:                                                                    
               Because the employees should have maintained records of                
               their income but failed to do so, it was deemed                        
               entirely appropriate to put the burden on them to prove                
               that the IRS’s estimate overstated their taxable                       
               income. * * *                                                          
               * * * the taxpayer in our case did not fail to satisfy                 
               a legal duty imposed on it by the Internal Revenue                     
               Code, and thus did not give the IRS just cause for                     
               resorting to an estimate in constructing its                           
               assessment.  [Fior D’Italia, Inc. v. United States,                    
               supra at 848.]                                                         
          In view of the complexity of using statistical methods to                   
          estimate unreported cash income that cannot be traced, we                   
          understand respondent’s decision to focus on traceable deposits.            
          However, respondent might well have required petitioner to                  
          explain the source of the remaining bank deposits, inasmuch as              
          respondent would have been required to do no more than include              
          the unexplained deposits in his determination, on the ground that           
          the deposits were unexplained and similar to the other taxable              
                                                             (continued...)           





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