Michael J. Downing and Sandra M. Downing - Page 48

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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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