Karen McManus - Page 5

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          1268, 1270 (9th Cir. 1982); Malfatti v. Commissioner, T.C. Memo.            
          2005-19.  A deficiency determination which is not supported by              
          some evidentiary foundation is arbitrary and erroneous.                     
          Weimerskirch v. Commissioner, supra at 362.  Under such                     
          circumstances, the Commissioner has the burden of coming forward            
          with evidence to establish the existence and amount of any                  
          deficiency.  Jackson v. Commissioner, 73 T.C. 394, 401 (1979).              
               Respondent incorrectly relies upon Hardy v. Commissioner,              
          181 F.3d 1002 (9th Cir. 1999), affg. T.C. Memo. 1997-97, for the            
          proposition that a revenue agent’s testimony, based upon a review           
          of a taxpayer’s administrative file, and a copy of the taxpayer’s           
          notice of deficiency, identifying the third-party payor, satisfy            
          the needed evidentiary foundation demonstrating that the taxpayer           
          received unreported income.                                                 
               In Hardy v. Commissioner, supra at 1005, the Court of                  
          Appeals for the Ninth Circuit found the Commissioner was relieved           
          from producing third-party income statements to prove a                     
          taxpayer’s receipt of income because the taxpayer stipulated the            
          Commissioner received the statements.  Therefore, the evidentiary           
          foundation requirement was satisfied when the Commissioner                  
          introduced worksheets showing tax owed on the basis of third-               
          party information and bank statements, in combination with the              
          parties’ stipulating the Commissioner’s receipt of the                      
          third-party information.  Id.                                               






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