Yu-Yang Wu - Page 21




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          these circumstances, respondent might well have included in the             
          deficiency determination14 all the unexplained deposits and                 
          imposed on petitioner the burden of showing that the deposits               
          were not unreported income.15                                               
               In view of the conservative approach taken by respondent, we           
          have no hesitation in sustaining respondent’s deficiency                    
          determinations, as adjusted to reflect respondent’s concession              
          for 1990.                                                                   
          Issue 2.  Petitioner’s Liability for Fraud Addition to Tax and              
                    Penalties                                                         
               For 1988, the civil fraud addition was set forth in section            
          6653(b).  It was moved in 1989, with some minor clarifying                  


               13(...continued)                                                       
          deposits.                                                                   
               14If the Commissioner does not include unexplained deposits            
          as unreported income in his deficiency determination, he may                
          still raise the issue by answer, or with leave of court by                  
          amendment to answer.  The Commissioner initially bears the burden           
          of proof in respect of new matters asserted in the answer, Rule             
          142(a)(1), but that burden is satisfied if the Commissioner                 
          establishes the existence of bank deposits and a potential                  
          taxable source, and the taxpayer fails to offer credible evidence           
          of a nontaxable source, see Hardy v. Commissioner, 181 F.3d 1002            
          (9th Cir. 1999), affg. T.C. Memo. 1997-97.                                  
               15Petitioner stated in his pretrial memorandum:  “my CPA and           
          attorney told me that I am very unlucky”.  Although petitioner              
          might consider himself unlucky because his returns were selected            
          for examination in the “audit lottery”, petitioner is very                  
          fortunate that respondent did not include in his deficiency                 
          determination, or in his answer:  (1) The remaining unexplained             
          deposits, (2) estimates, using statistical methods, of other                
          unreported cash receipts, or (3) amounts paid by the corporation            
          to petitioner, as constructive dividends.                                   





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