Laurel Ann Curtis - Page 12




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               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.                                                                 





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