Hugh Powell Arvin - Page 6

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               Respondent sent a letter to petitioner scheduling an Appeals           
          Office conference.  Petitioner did not appear at the conference             
          and failed to contact the officer before the date of the                    
               Section 7491(a)(1)2 provides that the burden of proof may,             
          under certain conditions, shift to the Commissioner.  Because               
          petitioner failed to meet the requirements of section 7491(a)(2),           
          the burden of proof does not shift to respondent.                           
               Petitioner's objections to respondent's adjustments are                
          those typical of so-called tax protesters.  In his trial                    
          memorandum, petitioner relies on Brushaber v. Union Pac. R.R.,              
          240 U.S. 1, 19 (1916), to support his propositions that the                 
          Sixteenth Amendment did not give the Federal Government any new             
          taxing powers and that income tax is actually an excise tax,                
          which can only be assessed against those who are licensed or                
          incorporated.  However, petitioner's argument is baseless.                  
               In Brushaber, the Court found the 1913 income tax law                  
               to be constitutional.  The Court also noted that in                    
               Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601                   
               (1895) it had previously found the taxing of income                    
               from professions, trades, employments or vocations to                  
               be constitutional in the form of an excise tax.  In                    
               light of the [S]ixteenth [A]mendment, however, all                     

               2Sec. 7491 is effective with respect to court proceedings              
          arising in connection with examinations by the Commissioner                 
          commencing after July 22, 1998, the date of its enactment by sec.           
          3001(a) of the Internal Revenue Service Restructuring and Reform            
          Act of 1998, Pub. L. 105-206, 112 Stat. 726.                                

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