-13- the taxpayer's income for those years based on income he reported in 1984, increased by the consumer price index. There was no evidence presented by either party regarding whether the taxpayer had taxable income during the years in issue. Because the Commissioner produced no predicate evidence supporting the determination, we found respondent's determination arbitrary and erroneous. Moreover, citing Portillo v. Commissioner, supra at 1133, we concluded that the rule in the Court of Appeals for the Fifth Circuit, to which any appeal of Senter would lie, is that once the presumption of correctness disappears, the Commissioner bears the burden of proof. We think the facts of the instant case are distinguishable from those of Portillo v. Commissioner, supra, and Senter v. Commissioner, supra. In both of those cases, the Commissioner did not present predicate evidence in support of the determination that the taxpayer had unreported income. In the present case, however, the respondent substantiated the charge with predicate evidence; she used the bank deposits and cash expenditures method of income reconstruction. Portillo v. Commissioner, supra at 1133-1134. Thus, respondent's deficiency determination was not arbitrary. See also Blohm v. Commissioner, 994 F.2d 1542, 1549 (11th Cir. 1993), affg. T.C. Memo. 1991-636 (once the Tax Court has found the Commissioner has made a minimal evidentiary showing, the deficiency determination is presumed correct); Erickson v. Commissioner, 937 F.2d 1548, 1551 (10thPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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