- 5 - 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.Page: Previous 1 2 3 4 5 6 Next
Last modified: May 25, 2011