
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 97-1778                     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                                                             ____ ____                                          2          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.          _______________   __________                                          3
