Tadeusz Smus - Page 3

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               minimal evidentiary foundation" even when the taxpayer                 
               offers no concrete evidence.  [United States v. Walton,                
               909 F.2d 915, 919 (6th Cir. 1990) (quoting Weimerskirch                
               v. Commissioner, 596 F.2d 358, 361, 362 (9th Cir.                      
               1979), revg. 67 T.C. 672 (1977)); citations omitted.]                  
          In addition, the Court of Appeals has held that where there is no           
          presumption of correctness arising out of the Commissioner's                
          determination, it is "the duty of the government affirmatively to           
          prove its case."  Weir v. Commissioner, 283 F.2d 675, 682 (6th              
          Cir. 1960), revg. and remanding T.C. Memo. 1958-158.                        
               At trial, petitioner sufficiently challenged the contents of           
          the notice.  Respondent introduced into evidence the notice of              
          deficiency but, inexplicably, did not introduce any other                   
          evidence (e.g., wage statements from AutoDie International or               
          bank records) or call any witnesses (e.g., individuals involved             
          with the audit or preparation of the alleged bank deposits                  
          analysis).  After asking Mr. Smus to identify the notice,                   
          respondent rested without any mention of, or any attempt to                 
          elicit any information about, Mr. Smus' alleged income-generating           
          activities.  Although the Court of Appeals has not defined a                
          "minimal evidentiary foundation", a notice of deficiency is not a           
          foundation for itself.  Because respondent failed to establish              
          the requisite foundation, his determinations were arbitrary,                
          erroneous, and, therefore, not entitled to a presumption of                 
          correctness.  As a result, respondent was required to come                  
          forward with evidence to establish the existence and amount of              





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