Transport Labor Contract/Leasing, Inc. & Subsidiaries - Page 81

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          (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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