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Generally, a taxpayer bears the burden of proving the
Commissioner’s determinations incorrect.4 Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). However, the Court of
Appeals for the Sixth Circuit, the Circuit to which appeal in
this case would lie absent stipulation otherwise,5 has held:
“The law imposes much less of a burden upon a taxpayer who is
called upon to prove a negative--that he did not receive the
income which the Commissioner claims--than it imposes upon a
taxpayer who is attempting to sustain a deduction.” Weir v.
Commissioner, 283 F.2d 675, 679 (6th Cir. 1960), revg. T.C. Memo.
1958-158; see also United States v. Walton, 909 F.2d 915, 918-919
(6th Cir. 1990); United States v. Besase, 623 F.2d 463, 465 (6th
Cir. 1980); Richardson v. Commissioner, T.C. Memo. 2006-69. In
cases involving unreported income, the Commissioner bears the
initial burden of establishing “at least a ‘minimal’ factual
predicate or foundation of substantive evidence linking the
4 Petitioner does not argue that sec. 7491(a) operates to
shift the burden of proof to respondent. Even if petitioner had
so argued, the burden of proof would not shift under sec. 7491(a)
because petitioner has not shown he maintained any records, nor
has he cooperated with the reasonable requests of respondent
during the administrative proceedings or in preparation for
trial.
5 While petitioner apparently resided in California during
2001, he resided in Niles, Ohio, when he filed his petition and
amended petition. Sec. 7482(b)(1)(A) provides that reviewable
decisions of the Tax Court are appealable to the Circuit in which
the taxpayer resides at the time the petition was filed.
Therefore, this case is appealable to the Court of Appeals for
the Sixth Circuit.
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