- 68 - Petitioners’ Position Regarding the Presumption of Correctness According to petitioners, Unless some evidence supports an inference that the taxpayer was involved in the business alleged in the notice of deficiency during the period covered by the notice, “an assessment may not be supported even where the taxpayer is silent.” * * * . * * * Therefore, before the Barmeses have any burden to present evidence in opposition to the Commis- sioner’s deficiency notice, the Commissioner is re- quired to present substantive evidence that the Barmeses received the unreported income asserted. Otherwise, the Commissioner is not entitled to a deci- sion in its favor. Here, there was no evidence showing the predicate fact that the Barmeses received the unreported income. * * * [Fn. ref. omitted.] The U.S. Court of Appeals for the Seventh Circuit (Court of Appeals), the Court to which an appeal in this case would nor- mally lie, has held: All that is required to support the presumption [of correctness] is that the Commissioner’s determination have some minimal factual predicate. It is only when the Commissioner’s assessment is shown to be “without rational foundation” or “arbitrary and erroneous,” that the presumption should not be recognized. * * * Pittman v. Commissioner, 100 F.3d 1308, 1317 (7th Cir. 1996), affg. T.C. Memo. 1995-243. Although certain cases on which petitioners rely, see United States v. McMullin, 948 F.2d 1188, 1192 (10th Cir. 1991), and Weimerskirch v. Commissioner, 596 F.2d 358, 360 (9th Cir. 1979), revg. 67 T.C. 672 (1977), mention the taxpayer’s “receipt” of income, it is not necessary for thePage: Previous 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 Next
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