John Wadsworth - Page 7

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          orally moved to dismiss the case for failure to properly                    
          prosecute pursuant to Rule 123(b).  The Court denied the motion.            
               Counsel for petitioner, David M. Kirsch, explained to the              
          Court why petitioner, upon Mr. Kirsch's advice, refused to                  
          respond to respondent's subpoena duces tecum despite the Court's            
          denial of petitioner's motion to quash.  Mr. Kirsch stated:                 
                    I am profoundly uncertain that Mr. Wadsworth can                  
               say anything at all, even for example, I don't have any                
               documents without waiving his privilege.  I just don't                 
               know what the state of the law is there."                              

               The determinations of the Commissioner in her statutory                
          notice of deficiency are presumed to be correct, and petitioner             
          has the burden of proving otherwise.  Rule 142(a); Welch v.                 
          Helvering, 290 U.S. 111 (1933).  A taxpayer is required to                  
          maintain records that are sufficient to enable the Commissioner             
          to determine his correct income tax liability.  Sec. 6001;                  
          Meneguzzo v. Commissioner, 43 T.C. 824, 831-832 (1965); sec.                
          1.6001-1(a), Income Tax Regs.                                               
               At trial, petitioner refused to proceed to carry his burden            
          of proof, relying on his claimed rights under the Fifth                     
          Amendment.                                                                  
               Some courts have recognized a limited exception to this                
          general rule where the Commissioner alleges that the taxpayer has           
          unreported income. In some cases, the deficiency determination              
          must be supported by some evidentiary foundation linking the                
          taxpayer to the alleged illegal income producing activity.  See             




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