No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax ... until a claim for refund or credit has been duly filed with the Secretary, according to the provisions*439 of law in that regard, and the regulations of the Secretary established in pursuance thereof.
(1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support the claim or defense.
must be more than incorrect, for the correctness of the amount assessed is quite irrelevant. It must be arbitrary in the sense that the calculation has no support and the true amount of tax owed is incapable of being ascertained. Thus, where records supporting an assessment were excluded from evidence, or are nonexistent, so that the basis upon which an assessment is calculated is beyond the knowledge of the court, the assessment is “arbitrary and erroneous.” It is beyond saving.
End of Document.