- 14 -
then the Government may be “elevated on its own powder charge”.
Jackson v. Commissioner, 73 T.C. at 403. In that event, “the burden
is no longer on petitioner to show that he owes nothing, or the
correct amount, if any, that he does owe.” Id. (citing Helvering v.
Taylor, 293 U.S. 507 (1935)); see Harp v. Commissioner, 263 F.2d
139, 141 (6th Cir. 1959) (“the Commissioner’s determination is
presumed correct, but if error is shown, the presumption disappears
and the Commissioner then has the burden of proving the correctness
of his determination, or at least the correct amount actually
due.”), affg. in part, revg. in part and remanding T.C. Memo. 1957-
105.
Having admitted that he derived his deficiency figures for
petitioner’s alleged illegal income from the photocopied pages and
having undertaken at trial to establish the reasonableness of his
determination on that basis, respondent has in the process
inadvertently convinced us that his deficiency figures were
unreliably derived. In particular, respondent’s belatedly retracted
admission that the photocopied pages (which respondent has not
otherwise adequately connected with petitioner) are not in
petitioner’s handwriting seems plainly inconsistent with the basis
of respondent’s reconstruction of petitioner’s income.
Taxpayers may not avoid the imposition of legally due taxes by
concealing facts, but neither may the Commissioner base his
determination on a “‘strong underlying element of guess work.’”
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011