- 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 not
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011