General Dynamics Corporation and Subsidiaries - Page 12

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               Respondent argues that her contention that the amount of the           
          credits must be substantiated as described above is a new theory            
          and not “new matter” within the meaning of Rule 142(a).                     
          Respondent goes on to point out that her new theory “merely                 
          clarifies or develops respondent’s original determination without           
          requiring the presentation of different evidence, is not                    
          inconsistent with respondent’s original determination, or does              
          not increase the amount of the deficiency.”                                 
               We do not agree with respondent’s statement that the “new              
          theory” will not require the presentation of different evidence,            
          because, if respondent is correct about the method of determining           
          the amount of the credit, petitioner may be required to develop             
          and employ a different methodology from that used by its                    
          accountants to calculate the credits.                                       
               We do agree, however, that respondent’s approach is a                  
          different theory rather than new matter.  It represents a new               
          theory for respondent’s denial of the claim for increased                   
          credits.  We note that respondent’s position in this case is not            
          derived from the notice of deficiency, but from respondent’s                
          answer in response to petitioner’s allegation in its petition.              
               In this case, respondent did not make a determination in her           
          notice of deficiency concerning the increased credits.  Instead,            
          petitioner made allegations in its petition seeking the benefit             
          of such.  The examination of petitioner’s returns that led to the           
          issuance of the notice of deficiency and this controversy did not           




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