Cathy Miller Hardy - Page 8

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          rebutted by clear and convincing evidence; and (3) section 66(b)            
          and (c) does not apply in the instant case.                                 
               Before focusing on the foregoing matters, we shall address             
          petitioner's contention, which respondent disputes, that respon-            
          dent has the burden of proving that Mr. Hardy has income for the            
          years at issue.7                                                            
               We conclude that respondent has the burden of proving that             
          Mr. Hardy has income for 1983, a new matter that respondent did             
          not determine in the notice,8 see Rule 142(a), and that peti-               
          tioner has the burden of proving error in respondent's determina-           
          tions in the notice that Mr. Hardy has income for 1984 and 1985,            




          7  We do not understand petitioner to contend that respondent               
          also has the burden of proving (1) that the presumption under               
          Nevada law that the income paid to and/or earned by Mr. Hardy               
          during the years at issue is community income is not rebutted               
          and (2) that sec. 66(b) and (c) does not apply in the present               
          case.  Even if we misunderstood petitioner's position regarding             
          who has the burden of proof on those two matters, we conclude               
          that (1) petitioner, who is the spouse claiming that the income             
          paid to and/or earned by Mr. Hardy during the years at issue is             
          not community income, has the burden under Nevada law to rebut by           
          clear and convincing evidence the presumption under that law that           
          that income is community income, see Pryor v. Pryor, 103 Nev.               
          148, 150, 734 P.2d 718, 719 (1987), and (2) petitioner, who                 
          relies on sec. 66(b) and (c), has the burden of proving that she            
          has satisfied the requirements of that section.  Cf. United                 
          States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994).                       
          8  Petitioner does not even advance as a ground for her position            
          that respondent has the burden of proving that Mr. Hardy has                
          income for 1983 that that is a new matter that was not determined           
          in the notice.                                                              






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