Marvin L. Barmes and Barbara J. Barmes - Page 68




                                       - 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 the                 






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