- 3 - 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 ofPage: Previous 1 2 3 4 Next
Last modified: May 25, 2011