- 20 - 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...)Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
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