- 48 - that the correct total amounts of cash and checks are $3,208 in 1994 (an increase of $2,943 from the stipulation) and $3,276 in 1995 (an increase of $2,874 from the stipulation). On answering brief, petitioners contend that $1,000 cash was deposited into the Premier Bank personal account. Although petitioners have not directed our attention to evidence of record, our examination shows that this deposit is listed on Exhibit 40-J (p.1). On answering brief, petitioners further state that this $1,000 was “for Mrs. Downing’s birthday”. Petitioners have not directed our attention to evidence of record on this latter point, which we gather to be an implicit assertion that the $1,000 was a gift, and we have not found any such evidence. Respondent has the burden of proving by clear and convincing evidence that there is an underpayment, but respondent cannot properly be charged with negativing theoretical possibilities first asserted on answering brief without foundation in the evidentiary record. We are satisfied that the stipulated gift deposits are all that should be allowed (except for the $100 discussed in note 26, supra), for the following reasons: (a) On neither opening nor answering brief have petitioners directed our attention to any evidence in the record that supports the numbers for which they contend, or any other amounts that exceed the stipulated minima.Page: Previous 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 Next
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