The Court agrees with the Government (see Gov't Reply 4) that many of the cases cited by the Martynuks are inapposite because they concern the burden of production where the taxpayers have not filed their own tax returns. (See Def. Opp. 16-17 (citing, inter alia, Wheeler v. Comm'r, 446 F. App'x 951 (10th Cir. 2011) (non-binding summary order); Brooks v. Comm'r, 93 T.C.M. (CCH) 1078 (2007); Lewis v. Comm'r, 93 T.C.M. (CCH) 934 (2007), aff'd, 523 F.3d 1272 (10th Cir. 2008))). Under such circumstances, the IRS typically creates a "substitute for return" ("SFR"), which must comply with 26 U.S.C. ยง 6020(b).
The U.S. Tax Court has "repeatedly confirmed that a Form 4340 can provide the basis for finding that a taxpayer has not filed a return." Wheeler v. Comm'r, 446 F. App'x 951, 953 (10th Cir. 2011) (citing Hazel v. Comm'r, 95 T.C.M. (CCH) 1528, 2008 WL 2095614, at *2-3 (2008) (collecting cases)). Accordingly, the IRS met its evidentiary burden.