- 21 - 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.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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