

                      [NOT FOR PUBLICATION]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 &amp; 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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