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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.
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