Lee G. Gale - Page 18




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          Welch v. Helvering, 290 U.S. 111 (1933).7  However, the                     
          presumption of correctness does not apply when the Government’s             
          determination is a “‘naked’ assessment without any foundation               
          whatsoever”.  United States v. Janis, 428 U.S. 433, 441 (1976).             
               An appeal of the cases at hand would lie to the Court of               
          Appeals for the Ninth Circuit, which has held in unreported                 
          income cases that the presumption of correctness applies only if            
          the Commissioner’s determination is supported by some substantive           
          evidence that the taxpayer received the unreported income.  Rapp            
          v. Commissioner, 774 F.2d 932, 935 (9th Cir. 1985); Weimerskirch            
          v. Commissioner, 596 F.2d 358, 360-361 (9th Cir. 1979), revg. 67            
          T.C. 672 (1977); Petzoldt v. Commissioner, 92 T.C. 661, 687-690             
          (1989) (discussing Court of Appeals for the Ninth Circuit                   
          authorities).  However, once the Commissioner has introduced the            
          necessary “predicate evidence” concerning the unreported income,            
          the taxpayer has the usual burden of establishing, by a                     
          preponderance of the evidence, that the Commissioner’s                      
          determination is arbitrary or erroneous.  Rapp v. Commissioner,             
          supra at 935; Petzoldt v. Commissioner, supra at 689.  The Court            


               7 The provision of sec. 7491(a) for shifting the burden of             
          proof to the Commissioner applies only to Court proceedings                 
          arising in connection with examinations commenced after July 22,            
          1998, Internal Revenue Service Restructuring and Reform Act of              
          1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726.  In the cases at           
          hand, the notices of deficiency were issued on Oct. 7, 1996, and            
          Nov. 19, 1997.  We find that the examinations were commenced                
          before July 23, 1998.  Therefore, sec. 7491(a) does not apply to            
          the cases at hand.                                                          





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