SDI Netherlands B.V., f.k.a. SDI International B.V. - Page 12

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                develops respondent's original determination without                         
                requiring the presentation of different evidence, being                      
                inconsistent with respondent's original determination,                       
                or increasing the amount of the deficiency.  Achiro v.                       
                Commissioner, 77 T.C. 881, 889-891 (1981).                                   
                The notices of deficiency herein provide in pertinent part:                  
                The payments you made to nonresident aliens in the                           
                amounts shown are subject to the withholding rate                            
                provided by section 1441(a) of the Internal Revenue                          
                Code.  Since you did not withhold the tax, and did not                       
                establish that the recipient of the payments paid the                        
                United States tax, you are liable for the tax that                           
                should have been withheld.  * * *                                            
                We think that section 1441, which imposes the withholding                    
          tax on nonresident alien individuals and foreign partnerships,                     
          was cited only for the rate of tax applied by respondent.                          
          Respondent cited no section for the source of the deficiencies,                    
          nor, indeed, was respondent required to do so.  Jarvis v.                          
          Commissioner, 78 T.C. 646, 655-656 (1982).  The language of the                    
          notices did not, directly or by necessary inference, exclude a                     
          claim under section 1442, which imposes the withholding tax on                     
          foreign corporations and upon which respondent proceeds herein.                    
          Moreover, section 1442 makes reference to and incorporates                         
          section 1441 so that reference to section 1441 is entirely                         
          appropriate in a proceeding under section 1442.  See Central de                    
          Gas de Chihuahua, S.A. v. Commissioner, 102 T.C. 515, 517 (1994).                  
          Beyond this, the very elements of section 1442 upon which                          
          petitioner relies to shift to respondent the burden of proof,                      
          i.e., the burden of proving that SDI Bermuda was not engaged in                    




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