                                                                      [DO NOT PUBLISH]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

                                           3
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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