Betty J. Shackelford - Page 5

                                        - 5 -                                         
          whether petitioner's correct filing status for the taxable year             
          1989 was "single" or "married filing separate".                             
          As a preliminary matter, however, we must determine which party             
          bears the burden of proof on this issue.                                    
               Generally, the burden of proof is on the taxpayer.  Rule               
          142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).  Respondent           
          bears the burden of proof, however, with respect to "any new                
          matter, increases in deficiency, and affirmative defenses,                  
          pleaded in the answer".  Rule 142(a).  An assertion in an amended           
          answer is treated as a new matter when it either increases the              
          original deficiency or requires the presentation of different               
          evidence.  Wayne Bolt & Nut Co. v. Commissioner, 93 T.C. 500, 507           
          (1989); Achiro v. Commissioner, 77 T.C. 881, 890 (1981).  The               
          assertion of a new theory that merely clarifies or develops the             
          original determination is not a new matter in respect of which              
          respondent bears the burden of proof.  Wayne Bolt & Nut Co. v.              
          Commissioner, supra; Achiro v. Commissioner, supra; Estate of               
          Jayne v. Commissioner, 61 T.C. 744, 748-749 (1974).                         
               In her notice of deficiency, respondent determined a                   
          deficiency in petitioner's income tax of $40,012 and an accuracy-           
          related penalty of $7,949.  On April 6, 1994, respondent filed a            
          Motion for Leave to File an Amendment to Answer, which this Court           
          granted.  In her amended answer, respondent asserted a deficiency           
          in petitioner's income tax of $42,583 and an addition to tax of             
          $8,463 based on respondent's revised determination that                     




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011