Larry J. and Anita L. Lundgren - Page 9

                                        - 9 -                                         
          II. Burden of Proof                                                         
               In general, the Commissioner’s determination of a taxpayer’s           
          tax liability is presumed correct, and the taxpayer bears the               
          burden of proving that the Commissioner’s determination is                  
          improper.  Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115               
          (1933).  The “presumption of correctness” is appropriate where              
          the Commissioner has furnished evidence linking the taxpayer to             
          the “tax generating activity”.  Gold Emporium, Inc. v.                      
          Commissioner, 910 F.2d 1374, 1378 (7th Cir. 1990), affg. Malicki            
          v. Commissioner, T.C. Memo. 1988-559.                                       
               Where the Commissioner introduces evidence that the taxpayer           
          received unreported income, as respondent did here, the burden              
          generally is on the taxpayer to show by a preponderance of the              
          evidence that the deficiency was arbitrary and erroneous.  Hardy            
          v. Commissioner, 181 F.3d 1002, 1004 (9th Cir. 1999), affg. T.C.            
          Memo. 1997-97; see also Palmer v. IRS, 116 F.3d. 1309, 1312 (9th            
          Cir. 1997) (“The Commissioner’s deficiency determinations and               
          assessments for unpaid taxes are normally entitled to a                     
          presumption of correctness so long as they are supported by a               
          minimal factual foundation.”)(emphasis added)); Edwards v.                  
          Commissioner, 680 F.2d 1268, 1270 (9th Cir. 1982).                          
               However, section 7491 may shift the burden to the                      
          Commissioner in specified circumstances, for example, where the             
          taxpayer produces “credible evidence” and meets other                       
          requirements.  Sec. 7491(a)(1); see also H. Conf. Rept. 105-599,            




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011