- 20 - documents that respondent introduced through the affidavits provide ample evidentiary support for his determinations. Respondent has satisfied any burden of production which he may initially bear under the cases cited above. Petitioner also contends that respondent, in making his determinations, arbitrarily relied on the Forms W-2 and 1099 that the payors submitted without ascertaining whether those entities submitted Forms W-3 and 1096, signed under penalties of perjury. Petitioner also suggests that respondent’s determinations are arbitrary in that he failed to ascertain whether the payors were on his “Bad Payor List”.16 We disagree and hold that respondent’s determinations are not per se arbitrary where he fails to ascertain whether the third-party payors submitted Forms W-3 and 1096 with the information returns or whether those payors are on his “Bad Payor List”. In the instant case, there is no evidence that any of the payors were on respondent’s “Bad Payor 15(...continued) 785, 787 (5th Cir. 1997), affg. an unpublished order of this Court. Congress, in enacting sec. 6201(d), has also recognized that in the absence of that Code section’s application, the burden of proving that determinations of unreported income are arbitrary or incorrect generally remains on the taxpayer where the Commissioner relies solely on information returns that third parties submitted. 16The Commissioner maintains a “Bad Payor List”, which includes those persons and entities that have previously submitted false, fraudulent, inaccurate, or mistaken information to the Social Security Administration or the IRS on Forms W-2 or 1099.Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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