T.C. Memo. 1998-386

UNITED STATES TAX COURT

TADEUSZ SMUS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 19692-97. Filed October 28, 1998.

Tadeusz Smus, pro se.

Eric R. Skinner, for respondent.

MEMORANDUM OPINION

FOLEY, Judge: In a notice of deficiency issued to Tadeusz

Smus, on July 1, 1997, respondent determined the following

deficiencies in and additions to Mr. Smus' Federal income taxes:

 Additions to Tax 

Year Deficiency Sec. 6651(a)(1) Sec. 6654

1991 $26,554 $6,639 $1,529

1992 32,085 8,021 1,399
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1993 37,731 9,433 1,584

1994 2,456 473 93

1995 9,596 1,895 401

All section references are to the Internal Revenue Code in effect

for the years in issue. When Mr. Smus filed his petition, on

September 29, 1997, he resided in Rockford, Michigan. Mr. Smus

did not file Federal income tax returns relating to the years in

issue. 

Respondent contends that Mr. Smus received and failed to

report self-employment income relating to 1991, 1992, and 1993.

In the notice of deficiency issued to Mr. Smus, respondent

informed Mr. Smus that "In the absence of adequate records, your

gross receipts for the taxable years ended December 31, 1991,

1992 and 1993 have been computed by reference to bank deposits." 

The notice delineates that respondent further determined that Mr.

Smus failed to report, in 1993, 1994, and 1995, installment sale

gain and interest income, and, in 1994 and 1995, wages from

AutoDie International. Mr. Smus contends that respondent's

determinations are arbitrary.

Where the issue in dispute is the taxpayer's receipt of

income, the Court of Appeals for the Sixth Circuit, where an

appeal would lie, has recognized:

 It is a sound principle that "[a] deficiency

determination which is not supported by the proper

foundation of substantive evidence is clearly arbitrary

and erroneous," and that the Commissioner "cannot rely

on the presumption [of correctness] in the absence of a
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minimal evidentiary foundation" even when the taxpayer

offers no concrete evidence. [United States v. Walton,

909 F.2d 915, 919 (6th Cir. 1990) (quoting Weimerskirch

v. Commissioner, 596 F.2d 358, 361, 362 (9th Cir.

1979), revg. 67 T.C. 672 (1977)); citations omitted.] 

In addition, the Court of Appeals has held that where there is no

presumption of correctness arising out of the Commissioner's

determination, it is "the duty of the government affirmatively to

prove its case." Weir v. Commissioner, 283 F.2d 675, 682 (6th

Cir. 1960), revg. and remanding T.C. Memo. 1958-158. 

At trial, petitioner sufficiently challenged the contents of

the notice. Respondent introduced into evidence the notice of

deficiency but, inexplicably, did not introduce any other

evidence (e.g., wage statements from AutoDie International or

bank records) or call any witnesses (e.g., individuals involved

with the audit or preparation of the alleged bank deposits

analysis). After asking Mr. Smus to identify the notice,

respondent rested without any mention of, or any attempt to

elicit any information about, Mr. Smus' alleged income-generating

activities. Although the Court of Appeals has not defined a

"minimal evidentiary foundation", a notice of deficiency is not a

foundation for itself. Because respondent failed to establish

the requisite foundation, his determinations were arbitrary,

erroneous, and, therefore, not entitled to a presumption of

correctness. As a result, respondent was required to come

forward with evidence to establish the existence and amount of
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Mr. Smus' deficiency. See Jackson v. Commissioner, 73 T.C. 394,

401 (1979); see also Weir v. Commissioner, supra at 682. 

Respondent failed to do so. Accordingly, we hold for petitioner.

To reflect the foregoing,

Decision will be entered

for petitioner.