-12-
Commissioner, 87 T.C. 609, 618 (1986), affd. without published
opinion 827 F.2d 774 (11th Cir. 1987); Llorente v. Commissioner,
supra at 264.
In Portillo v. Commissioner, supra, the taxpayer was a
painting contractor who received a Form 1099 (Miscellaneous
Income) that he claimed was not correct. Other than the
uncorroborated testimony of a witness who testified that he had
paid the taxpayer the disputed amount of income, there was no
evidence supporting the Commissioner's determination. The Court
of Appeals for the Fifth Circuit noted that, like this Court, it
is reluctant to look at the facts underlying the Commissioner's
notice of deficiency. The Court of Appeals also held, however,
that it will "not give effect to the presumption of correctness
in a case involving unreported income if the Commissioner cannot
present some predicate evidence supporting its determination."
Id. at 1133. More specifically, the Court of Appeals articulated
its rule as follows:
before we will give the Commissioner the benefit of the
presumption of correctness, he must engage in one final
foray for truth in order to provide the court with some
indicia that the taxpayer received unreported income. The
Commissioner would merely need to attempt to substantiate
the charge of unreported income by some other means, such as
by showing the taxpayer's net worth, bank deposits, cash
expenditures, or source and application of funds. * * *
[Id. at 1133-1134; emphasis added.]
In Senter v. Commissioner, supra, the Commissioner based her
determination solely on the assertion that the taxpayer filed no
returns for 1987 through 1991. The Commissioner reconstructed
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