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the audit was over and no one had asked any questions, it was
ASSUMED that the files and records were no longer needed, they
were destroyed.” If there is insufficient evidence in the trial
record to establish the amount of petitioner’s basis, they argue,
the perfunctory handling of the audit is to blame, and it would
be unfair to make petitioners bear the consequences. “In a
criminal proceedings [sic] had the investigators failed to
complete the investigation * * * ruling in favor of the defendant
would be appropriate.”
Petitioners misunderstand the nature of this proceeding. A
petition for redetermination of a deficiency is a request for a
trial on a clean slate of all disputed issues relating to the
taxpayer’s liability for the taxable year. The factual record
assembled at the audit stage as a basis for the Commissioner’s
determinations is generally irrelevant; unlike a criminal
proceeding in which the Government bears the burden of
persuasion, generally the Commissioner is not required to come
forward with any evidence. Potts, Davis & Co. v. Commissioner,
431 F.2d 1222, 1225 (9th Cir. 1970), affg. T.C. Memo. 1968-257;
Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327-328
(1974); Wisconsin Butter & Cheese Co. v. Commissioner, 10 B.T.A.
852, 854 (1928); Lyon v. Commissioner, 1 B.T.A. 378, 379-380
(1925). Petitioners are not entitled to claim any more basis
than they have proven with the few pertinent documents they
retained and presented at trial.
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