- 12 - B. Minimal Evidentiary Foundation The Court of Appeals has not specified generally what constitutes the required minimal evidentiary foundation. Apparently, however, unless the taxpayer challenges the Commissioner’s determination of a deficiency in tax on the merits, the Commissioner need not provide any such foundation. See Roat v. Commissioner, 847 F.2d 1379, 1383 (9th Cir. 1988) (sustaining order of Tax Court dismissing taxpayers’ case for failure to prosecute). In Rapp v. Commissioner, 774 F.2d 932 (9th Cir. 1985), which appears to involve unreported income from employment, the sale of a residence, and a business, the only evidence the Commissioner introduced consisted of documents the Commissioner had himself 2(...continued) 727, and which is effective with respect to examinations commenced after July 22, 1998 (and which is, therefore, of no application to this case). In general, and if certain prerequisites are satisfied, then, with respect to any factual issue relevant to ascertaining the liability of a taxpayer for any tax, the burden of proof with respect to that issue is on the Government, but only if the taxpayer introduces credible evidence with respect to that issue. Sec. 7491(a)(1). The Court of Appeals has not explained its reason for burdening the Commissioner with the obligation to show his basis for charging the taxpayer with unreported income. It cannot be that a taxpayer is without resources, through discovery or otherwise, to determine that the Commissioner had no such basis (if, indeed, he did not). Presumably, a determination of deficiency without basis in fact is invalid. In Helvering v. Taylor, supra at 514, the Supreme Court said that it was “unquestionably” the burden of the taxpayer to show such invalidity.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011