John D. Shea - Page 2




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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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