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