Luciano V. Flores - Page 6

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          his girlfriend.  But even if we accepted petitioner’s testimony             
          that these people acted as his agents, there are items that have            
          a hollow ring.  For example, petitioner testified that his cell             
          phone was in his girlfriend’s name.  However, deductions are                
          alleged for two phones.                                                     
               Ordinarily we would be inclined to simply hold that                    
          petitioner has not carried his burden of proof3 (see Rule 142)              
          and sustain respondent’s determination.  We believe, however,               
          that most of the problem results from ignorance of any type of              
          bookkeeping skills and requirements.  Furthermore, we are                   
          concerned that, notwithstanding the failures in petitioner’s                
          case, respondent’s determination that petitioner’s expenses were            
          59 percent of his gross income is erroneous.  During 1998, a                
          general building contractor’s expenses were approximately 86                
          percent of the gross income.  See Internal Revenue Service,                 
          Statistics of Income Bulletin, p. 30 (SOI) (Summer 2000).  We               
          are, therefore, fairly confident that petitioner did have some              
          expenses in addition to those allowed by respondent.                        
               In such circumstances, although absolute certainty is                  
          usually impossible, courts have allowed deductions based on a               
          close approximation but bearing heavily against the taxpayer                

          3    It would be ludicrous to say that under these circumstances            
          petitioner is entitled to shift the burden of proof to respondent           
          under sec. 7491(a).  To say the least, he did not maintain                  
          adequate records or present credible evidence.  See sec. 7491(a).           





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