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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 the
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