Daniel F. Layman, III - Page 11




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          regarding the new basis.  Shea v. Commissioner, 112 T.C. 183                
          (1999).                                                                     
               Here, the relevant issues raised by respondent's notices of            
          deficiency for petitioner's failing to file include:                        
          Petitioner's unreported income, the filing status of petitioner,            
          the number of exemptions petitioner is allowed, and the related             
          additions to tax.  The notices of deficiency fail to mention                
          community property law, section 66(b), or facts which would allow           
          respondent to invoke section 66(b).  Since the notices of                   
          deficiency do not describe section 66(b) as respondent's basis              
          for disallowing the benefits of community property law to                   
          petitioner, and different evidence will be necessary to resolve             
          the section 66(b) issue, respondent must bear the burden of proof           
          regarding application of section 66(b).  See Shea v.                        
          Commissioner, supra.                                                        
               Respondent contends that the following facts demonstrate               
          that petitioner acted as if he were solely entitled to the                  
          income.  First, respondent posits that petitioner had complete              
          control and dominion over his income for the taxable years 1991,            
          1992, and 1993.  Second, respondent alleges that the fluctuation            
          in the amounts petitioner sent to his former spouse for her                 
          support and the support of their children in 1991, 1992, and                
          1993, is further indication that petitioner acted as though he              
          were solely entitled to the income.  Third, respondent alleges              






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