-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 (10th
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