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Respondent determined that under section 66(b) petitioner
should have included 100 percent of his income on the return.3
Section 66(b) allows respondent to deny petitioner the benefit of
community property laws with respect to any income if the
following requirements are satisfied: (1) The taxpayer acted as
if solely entitled to such income, and (2) the taxpayer failed to
notify his spouse of the nature and amount of such income before
the due date of the return.
Petitioner provided Mrs. Condello with various tax documents
relating to his 1992 income. These documents were intended to
help Mrs. Condello prepare her 1992 return. Among these
documents were petitioner's 1992 Forms W-2 and 1099. Petitioner
hand-delivered these documents to Mrs. Condello before the due
date of Mrs. Condello's 1992 return (i.e., April 15, 1993).
We find that petitioner provided Mrs. Condello with
sufficient notice of the nature and amount of his 1992 income
before the due date of her return and conclude that respondent
3 On brief, respondent also argued that sec. 66(a) supported
the determination. We consider sec. 66(a) to be a new matter
because it would require the presentation of different evidence
than the evidence required under sec. 66(b), and respondent would
bear the burden of proof as to that issue. See, e.g., Achiro v.
Commissioner, 77 T.C. 881, 890 (1981). Sec. 66(a) was not
referenced in the statutory notice of deficiency, and respondent
never amended his answer. We find that this issue is not before
the Court. See Foil v. Commissioner, 92 T.C. 376, 418 (1989),
affd. per curiam 920 F.2d 1196 (5th Cir. 1990); Markwardt v.
Commissioner, 64 T.C. 989, 997 (1975).
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