- 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
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