Bank One Corporation - Page 89

                                        -171-                                         
          the Commissioner.  The Court of Appeals for the Seventh Circuit             
          disagreed.  The court stated that shifting the burden of proof to           
          the Commissioner “would be tantamount to holding that skillful              
          concealment of income by failure to keep records and destruction            
          of the original documents from which income could be                        
          reconstructed would be an invincible barrier to proof.”  Id. at             
          102.  The Court of Appeals for the Ninth Circuit ruled similarly            
          in Clapp v. Commissioner, 875 F.2d 1396 (9th Cir. 1989).  There,            
          the court rejected a taxpayer’s argument that a significant                 
          disparity between the amounts in a notice of deficiency and the             
          amounts in a stipulated judgment was proof that the                         
          Commissioner’s determination was arbitrary.  The court noted that           
          the discrepancies were simply the product of the taxpayer’s                 
          refusing to cooperate with the audit.  Id. at 1402; accord Am.              
          Fletcher Corp. v. United States, 832 F.2d 436, 442 (7th Cir.                
          1987) (Cudahy, J., concurring) (“Taxpayers are required to keep             
          adequate records to support their declaration of taxable income,            
          and have no grounds for protest if the Commissioner imposes a               
          workable accounting method when confronted with inadequate                  
          records.”).                                                                 
               Petitioner asserts that respondent is required either to               
          introduce into evidence FNBC’s swap records or to advance                   
          alternative computations in order to legitimize as other than               
          arbitrary or erroneous his determination as to the credit and               






Page:  Previous  161  162  163  164  165  166  167  168  169  170  171  172  173  174  175  176  177  178  179  180  Next

Last modified: May 25, 2011