- 14 -
deciding whether a "new matter" is involved that requires that
the burden of proof be shifted to respondent. See Zarin v.
Commissioner, supra; Estate of Emerson v. Commissioner, 67 T.C.
612, 620 (1977).
Finally, we note that petitioner itself contributed to any
confusion that may have existed in respect of the applicability
of section 1442 or section 1441, referred to in the notices of
deficiency. Prior to the time the notices of deficiency were
prepared, respondent had received limited information regarding
the royalty payments at issue. In particular, it was unclear to
whom, and in what amount, the royalty payments were being made.
Only just prior to the date set for trial and after prodding by
the Court did petitioner come forth with evidence as to whom and
in what amounts the royalties were paid.
In sum, since the essential elements of proof are the same
under the circumstances herein whether section 1441 or section
1442 provides the key to decision, there is no surprise or
unfairness in rejecting petitioner's contention that the burden
of proof should be shifted to respondent. See Stewart v.
Commissioner, 714 F.2d 977, 990-991 (9th Cir. 1983), affg. T.C.
Memo. 1982-209.11
Liability for Withholding
11 See also Ruark v. Commissioner, T.C. Memo. 1969-48, affd. per
curiam 449 F.2d 311 (9th Cir. 1971).
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