Thomas G. Brenner - Page 15

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          nontaxable income and/or he was entitled to additional                      
          deductions, but he failed to take advantage of that opportunity.            
               Petitioner did not present at trial even a scintilla of                
          evidence to prove error in respondent’s computations.  Petitioner           
          chose, instead, to assert the Fifth Amendment privilege against             
          self-incrimination.  Assuming this was a valid assertion of the             
          privilege, it is not a substitute for evidence and is not                   
          “intended to be * * * a sword whereby a claimant asserting the              
          privilege would be freed from adducing proof in support of a                
          burden which would otherwise have been his.”  United States v.              
          Rylander, 460 U.S. 752, 758 (1983); Tweeddale v. Commissioner,              
          841 F.2d 643, 645 (5th Cir. 1988), affg. T.C. Memo. 1987-197;               
          Petzoldt v. Commissioner, 92 T.C. 661, 684 (1989).  In a civil              
          tax case, the taxpayer cannot avoid the burden of proof by                  
          asserting the Fifth Amendment privilege.  United States v.                  
          Rylander, supra at 758; see Steinbrecher v. Commissioner, 712               
          F.2d 195, 198 (5th Cir. 1983), affg. T.C. Memo. 1983-12;                    
          Traficant v. Commissioner, 89 T.C. 501 (1987), affd. 884 F.2d 258           
          (6th Cir. 1989); Wheelis v. Commissioner, T.C. Memo. 2002-102,              
          affd. 63 Fed. Appx. 375 (9th Cir. 2003).                                    
               In view of all the evidence, we hold that resort to the bank           
          deposits method was necessary to determine petitioner’s income              
          for the taxable years involved and that respondent properly                 
          applied this method in determining that income.  Therefore, we              






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