Louis E. Peyton - Page 9

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          received unreported income from marijuana sales and from                    
          construction activities.                                                    
               As a general rule, the taxpayer bears the burden of proving            
          error in the Commissioner’s determinations.  Rule 142(a).                   
          Although section 7491 may shift the burden to the Commissioner in           
          certain circumstances, the section is applicable only to court              
          proceedings that arise in connection with examinations commencing           
          after July 22, 1998.  Internal Revenue Service Restructuring &              
          Reform Act of 1998, Pub. L. 105-206, sec. 3001(c), 112 Stat. 727.           
          It is apparent from the record in this case that the examination            
          commenced prior to July 22, 1998, and, therefore, section 7491              
          has no application.                                                         
               Courts have recognized a limited exception to the general              
          rule where the notice of deficiency determines that the taxpayer            
          failed to report income, particularly income derived from illegal           
          activities.  Llorente v. Commissioner, 649 F.2d 152, 156 (2d Cir.           
          1981), affg. in part and revg. in part 74 T.C. 260 (1980);                  
          Weimerskirch v. Commissioner, 596 F.2d 358, 360-362 (9th Cir.               
          1979), revg. 67 T.C. 672 (1977); Petzoldt v. Commissioner, 92               
          T.C. 661, 687-688 (1989).  In such circumstances, respondent must           
          come forward with evidence establishing a minimal foundation,               
          which may consist of evidence linking the taxpayer with an                  
          income-producing activity.  Weimerskirch v. Commissioner, supra             
          at 360-361; Petzoldt v. Commissioner, supra at 689.                         






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