dissenting: In my opinion, the record in this case fails to support a finding that the notice of deficiency was “arbitrary and capricious.” Respondent had reasonable cause, based upon information derived from informants, that the petitioner was engaged in the distribution and sale of illegal drugs during November and December of 1970. If true, the resulting income is subject to tax. In the absence of any records, it was incumbent upon the respondent to proceed upon the basis of the best information available to him. To do so, regardless whether the method adopted by the respondent can be relied upon with any degree of exactitude, does not mean that it was “arbitrary and capricious.” Weimerskirch v. Commissioner, 67 T.C. 672 (1977), revd. 596 F.2d 358 (9th Cir. 1979).
The petitioner had an opportunity before this Court to prove that he was not, in fact, engaged in the sale of narcotics during the period in question. Admittedly, proof of a negative is difficult. Petitioner relied solely on his self-serving denial. The trial judge in this case did not believe his testimony. It may be that if petitioner had also presented evidence to show what activities he was engaged in during the period in question, greater credibility might have been given to his testimony.
If the income from illegal activities, and particularly the sale of narcotics, is to be taxed, it must be recognized that determination by the respondent of the amount to be taxed will not be derived from books and records, bank deposits, or other more conventional sources. Drug dealers deal strictly in cash and do not keep books and records. In determining the amount of income derived from such activities, respondent can only be expected to act on the basis of whatever information may be available to him. The fact that respondent is unable to determine with exactitude the resulting income to be taxed does not make his action “arbitrary and capricious.”
While I recognize that my views may differ from those expressed by the Ninth Circuit in reversing our decision in the Weimerskirch case, I am not prepared to follow the reversal of the Tax Court in that case.
Featherston, Fay, and Dawson, JJ., agree with this dissenting opinion.