- 81 -
(b).53
As for petitioner’s reliance on Helvering v. Taylor, 293
U.S. 507 (1935), that case is materially distinguishable from the
instant case, and petitioner’s reliance on it is misplaced. In
Helvering v. Taylor, supra, the taxpayer carried its burden of
proving that the determination of the Commissioner of Internal
Revenue as to the amount of the taxpayer’s deficiency was
erroneous. However, the taxpayer did not develop a record upon
which the trial court could have determined the correct amount,
if any, of the deficiency. Id. at 511-512. Thus, it was
appropriate in Helvering v. Taylor, supra, for the trial court to
have conducted further proceedings to establish a record from
which the trial court could have determined the appropriate
amount, if any, of the deficiency. See Hamm v. Commissioner, 325
F.2d at 940. In this connection, the Court of Appeals for the
Ninth Circuit stated in Cohen v. Commissioner, 266 F.2d 5, 11
(9th Cir. 1959), remanding T.C. Memo. 1957-172:
When the Commissioner’s determination has been
shown to be invalid, the Tax Court must redetermine the
deficiency. The presumption as to the correctness of
the Commissioner’s determination is then out of the
case. The Commissioner and not the taxpayer then has
the burden of proving whether any deficiency exists and
if so the amount. It is not incumbent upon the
taxpayer under these circumstances to prove that he
owed no tax or the amount of the tax which he did owe.
[Citations and fn. refs. omitted.]
In contrast to Helvering v. Taylor, supra, in Transport
53Petitioner does not contend that the Court made a mathe-
matical error in making that calculation.
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