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I.R.C., determination. A determination of whether or
not sec. 66(b), I.R.C., applies requires the
presentation of different evidence than that necessary
to decide the matters described in the notice of
deficiency.
Held: R's determinations of additional gross
receipts and disallowance of deductions are, with
certain modifications, upheld.
Held, further: Sec. 7522, I.R.C., requires that a
notice of deficiency contain a description of the basis
for the Commissioner's tax determination. Where R
relies on a basis that was not described in the notice
of deficiency that requires the presentation of
different evidence, it is "new matter" within the
meaning of Rule 142(a), Tax Court Rules of Practice and
Procedure. If the new matter is allowed to be raised,
Rule 142(a), Tax Court Rules of Practice and Procedure,
requires that R bear the burden of proof. The burden
of proof regarding application of sec. 66(b), I.R.C.,
is on R. R failed to meet this burden; therefore, P is
entitled to the benefits of California's community
property law for the taxable year 1992.
David M. Kirsch, for petitioner.
Dale A. Zusi, for respondent.
OPINION
RUWE, Judge: Respondent determined deficiencies in
petitioner's Federal income taxes, an addition to tax, and
accuracy-related penalties as follows:
Addition to Tax Accuracy-related Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
1990 $155,096 -- $31,019
1991 165,529 -- 33,106
1992 138,529 $34,632 27,706
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