USCA1 Opinion
[NOT FOR PUBLICATION]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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