- 12 - 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 notPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011