                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-4058
                                     ___________

Anthony Tinsman,                      *
                                      *
          Petitioner,                 * On Petition for Review of
                                      * an Order of the United
    v.                                * States Tax Court.
                                      *
Commissioner of Internal Revenue,     * [Not To Be Published]
                                      *
          Respondent.                 *
                                 ___________

                               Submitted: May 31, 2001
                                   Filed: June 19, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
      Circuit Judges.
                         ___________

PER CURIAM.

      Anthony Tinsman appeals from the decision of the United States Tax Court1 that
there were deficiencies in his federal income tax for 1994, 1995, and 1996 totaling
$3,029.00, and delinquency penalties for those years totaling $757.23. Tinsman v.
Commissioner, 79 T.C.M. (CCH) 1529 (Feb. 22, 2000). We affirm.




      1
          The Hon. John F. Dean, Special Trial Judge, United States Tax Court.
      In January 1998, the Commissioner of Internal Revenue issued Mr. Tinsman a
Notice of Deficiency for the years 1994, 1995, and 1996, based on unreported income.
The 1994 unreported income noted was an IRA distribution. The 1995 and 1996
unreported income noted was wages. Because Mr. Tinsman did not file tax returns for
1995 and 1996, his income for those years was estimated by using data from the
Bureau of Labor Statistics (BLS). Mr. Tinsman filed a petition in the Tax Court
contesting the Commissioner's determinations. In requesting an extension of time to
respond to a motion to strike filed by the Commissioner, Mr. Tinsman stated that he
was working full time.

       At trial, Mr. Tinsman did not present any evidence that he did not receive the
income in question or that it was nontaxable. He asserted that it was the
Commissioner's burden to go forward and prove that the determinations in the Notice
of Deficiency were correct. He claimed that the unreported income was for the sale of
his labor, which was a gift from God, and that the form reporting the IRA distribution
was not valid because it was not signed under penalty of perjury.

      When the Commissioner called Mr. Tinsman as a witness, he asserted his Fifth
Amendment privilege against self-incrimination to almost every question. An IRS
agent testified that his review of Mr. Tinsman's administrative file showed that Mr.
Tinsman did not file tax returns for 1995 and 1996, that he received an IRA distribution
in 1994, and that his wages for 1995 and 1996 were calculated based on BLS data in
accordance with accepted procedures.

       The Tax Court found that Mr. Tinsman did not actually dispute his connection
with the tax-generating income ascribed to him by the Commissioner; rather, he
advanced several arguments as to why this income was not taxable. The Court held
that, in any event, the Commissioner established a factual predicate for his
determinations, and that they were thus entitled to a presumption of correctness. The
Court then held that the use of BLS data was a reasonable method of income

                                          -2-
reconstruction for 1995 and 1996, and that because Mr. Tinsman had presented no
evidence that the Commissioner's determinations were erroneous, the presumption of
correctness was not rebutted. The Tax Court rejected Mr. Tinsman's legal arguments
as frivolous, and decided the case in the Commissioner's favor.

     On appeal Mr. Tinsman argues that the Tax Court erred in affording the
Commissioner's determinations a presumption of correctness. He argues that the
Commissioner's evidence that he received the unreported income at issue was all
inadmissible.

        The Commissioner's determinations of deficiencies in this case are entitled to a
presumption of correctness, unless they were made without any foundation or
supporting evidence.2 See Page v. Commissioner, 58 F.3d 1342, 1347 (8th Cir. 1995).
Upon review of the record, we find no error in the Tax Court's decision that the
Commissioner was entitled to this presumption, and that Mr. Tinsman did not meet his
burden of proving that the deficiency determinations were arbitrary or erroneous. See
id. at 1348-49; Day v. Commissioner, 975 F.2d 534, 537 (8th Cir. 1992).

      Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



      2
       The 1998 amendment to the Internal Revenue Code which shifts the burden of
proof to the Commissioner in certain cases, I.R.C. § 7491(a), does not apply to this
case, which involves an audit commenced before the amendment's effective date.

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