Russell A. Condello - Page 5

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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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