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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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