[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1778
TERENCE M. BENNETT,
Petitioner, Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent, Appellee.
ON APPEAL FROM THE DECISION OF THE
UNITED STATES TAX COURT
[Hon. Robert P. Ruwe, U.S. Tax Court Judge]
Before
Lynch, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Peter D. Anderson, with whom Scott H. Harris and McLane, Graf,
Raulerson & Middleton, P.A. were on brief for appellant.
Michelle B. O'Connor, Attorney, Tax Division, Department of
Justice, with whom Loretta C. Argrett, Assistant Attorney General, and
Gilbert S. Rothenberg, Attorney, Tax Division, Department of Justice,
were on brief for appellee.
FEBRUARY 25, 1998
Per Curiam. Petitioner Terence M. Bennett challenges
Per Curiam.
a United States Tax Court ruling rejecting his request for the
redetermination of a tax deficiency resulting from his receipt of
the proceeds from the sale of five antique automobiles. Bennett
v. Commissioner, 73 T.C.M. (CCH) 2389 (1997). In the Tax Court
Bennett maintained that some Saudi friends had owned the
vehicles, sold them, then loaned him the proceeds. See Webb v.
Commissioner, 15 F.3d 203, 205 (1st Cir. 1994) ( [B]ona fide loan
proceeds are not gross income to the borrower. ). On appeal, he
maintains that the burden of proving a deficiency assessment
predicated on unreported income should rest with the
Commissioner, not the taxpayer.
Bennett concedes, however, as he must, that the law in
this circuit is to the contrary, see Delaney v. Commissioner, 99
F.3d 20, 23 (1st Cir. 1996) (citing United States v. Rexach, 482
F.2d 10, 16 (1st Cir. 1973)), and that other courts of appeals
permit such burden-shifting only if the deficiency assessment is
manifestly arbitrary and capricious or devoid of a plausible
factual predicate for linking the taxpayer to the income, see,
e.g., Portillo v. Commissioner, 932 F.2d 1128, 1132-33 (5th Cir.
1991). Accordingly, the contention urged on appeal devolves into
a claim that the Tax Court s meticulous findings of fact are
clearly erroneous. See Crowley v. Commissioner, 962 F.2d 1077,
1080 (1st Cir. 1992).
In support, Bennett simply points to inconclusive bits
of evidence which might be considered indicia of a bona fide loan
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transaction, at the same time downplaying a mountain of evidence
including his own admissions that he owned the vehicles and
deliberately structured the transaction to avoid taxes. "Where
there are two permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous." Id.
Affirmed, see Local Rule 27.1. The parties shall bear
Affirmed, see Local Rule 27.1. The parties shall bear
their own costs. SO ORDERED.
their own costs. SO ORDERED.
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