[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 07-11804 ELEVENTH CIRCUIT
MAY 28, 2008
_____________________________
THOMAS K. KAHN
CLERK
U.S. TAX COURT No. 3289-05
BENNETT GEIGER,
Petitioner-Appellant,
versus
COMMISSIONER OF
INTERNAL REVENUE,
Respondent-Appellee.
_________________________________________
Appeal from the United States Tax Court
_________________________________________
(May 28, 2008)
Before CARNES and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.
_______________
* Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.
PER CURIAM:
This is an appeal of a tax court’s determination, after a non-jury trial, that
the taxpayer, Geiger, failed to substantiate his claimed theft loss deduction in
excess of $5,586. The standard of review is clearly erroneous for factual findings
and de novo for the application of law.
The tax court found Geiger’s evidence of a $564,711 theft loss to be
incomplete and inconclusive, and therefore, it found that Geiger failed to
substantiate his deduction in excess of $5,586. This Court does not find that
factual determination to be clearly erroneous. Furthermore, even assuming
arguendo that the tax court erred by finding that the burden did not shift to the
IRS, such error was harmless, because the tax court found that the evidence
weighed in favor of the IRS.
“Generally, the I.R.S. determination on the existence of a tax deficiency is
presumed correct; thus, the taxpayer generally bears the burden of proving
entitlement to a claimed deduction by a preponderance of the evidence.” Blodgett
v. C.I.R., 394 F.3d 1030, 1035 (8th Cir. 2005)(citation omitted). In order for the
burden to shift to the IRS under 26 U.S.C. § 7491(a), Geiger would have had to
provide credible evidence. Credible evidence for purposes of § 7491 has been
defined as:
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Credible evidence is the quality of evidence which, after critical
analysis, the court would find sufficient upon which to base a
decision on the issue if no contrary evidence were submitted (without
regard to the judicial presumption of IRS correctness). A taxpayer has
not produced credible evidence for these purposes if the taxpayer
merely makes implausible factual assertions, frivolous claims, or tax
protestor-type arguments. The introduction of evidence will not meet
this standard if the court is not convinced that it is worthy of belief. If
after evidence from both sides, the court believes that the evidence is
equally balanced, the court shall find that the Secretary has not
sustained his burden of proof.
Higbee v. C.I.R., 116 T.C. 438, 442 (Tax. Ct. 2001)(quoting H. Conf. Rept. 105-
599, at 240-241 (1998), 1998-3 C.B. 747, 994-995). Thus, “[w]hile a tax court
must consider the testimony as ‘if no contrary evidence were submitted . . .,’ a tax
court has the right in the first instance to reject the testimony as incredible.”
Blodgett, 394 F.3d at 1036 (citations omitted).
Even assuming that Geiger had presented credible evidence sufficient to
shift the burden, any error committed by the tax court by failing to shift the burden
was harmless, because the burden is of practical consequence only in the rare
event of an evidentiary tie. See id. at 1039 (citations omitted). This is because
“[i]n a situation in which both parties have satisfied their burden of production by
offering some evidence, . . . the party supported by the weight of the evidence will
prevail regardless of which party bore the burden of persuasion, proof or
preponderance.” Id. (citation omitted). Clearly, even if the burden had shifted to
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the IRS, the IRS met the burden, because the tax court found that the weight of the
evidence supported the conclusion that a theft loss greater than $5,586 was not
proven.
Accordingly, we affirm the tax court’s decision that Geiger did not prove
that a theft loss in excess of $5,586 occurred.
AFFIRMED.
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