Rubinstein v. Commissioner

29 T.C. 861, 1958 U.S. Tax Ct. LEXIS 259

• Court: United States Tax Court
• Decided: February 17, 1958
• Docket: Docket No. 44816
• Status: Published

Opinions

OPINION.

Opper, Judge:

The narrow question is whether respondent has carried his burden of proving that a fraudulent return was filed so as to avoid the statute of limitations¹ under the circumstances of this case, including the fact that he is unable to show what return was filed in the first place. This is not a case where the contents of the return have been demonstrated by secondary evidence. The only thing shown is the amount of tax due as entered on the collector’s assessment list. If this indicated, even by inference, the gross income and deductions entered upon the return, there might be some validity to respondent’s argument that the burden should shift to petitioner.

But the complications of setting out deductible items, subtracting them from gross income, giving effect to available credits, and then computing and entering the net tax due are too well known to permit a valid inference that the tax shown by the return is of itself sufficient measure either of gross income actually reported or of deductions properly taken.

Here we regard the failure to produce adequate evidence of the contents of the returns, upon whose falsity respondent relies, as fatal. On this issue petitioner is sustained.

Reviewed by the Court.

Decision will he entered under Bule 50.

BRUCE, /., concurs in the result.

1 SEC. 276. SAME — EXCEPTIONS.

(a) False Return ok No Return. — In the case of a false or fraudulent return with intent to evade tax or a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time,