John D. Shea - Page 14




                                       - 14 -                                         

          amount of such income before the due date for filing the return.            
          See Mischel v. Commissioner, T.C. Memo. 1997-350; Schramm v.                
          Commissioner, T.C. Memo. 1991-523, affd. without published                  
          opinion 988 F.2d 121 (9th Cir. 1993).  However, petitioner                  
          contends that respondent made no determination in the notice of             
          deficiency to disallow the benefits of community property law               
          pursuant to section 66(b), that respondent's reliance on section            
          66(b) is a "new matter" within the meaning of Rule 142(a),10 and            
          that respondent must bear the burden of proving that section                
          66(b) applies.11                                                            
               When the Commissioner attempts to rely on a basis that is              
          beyond the scope of the original deficiency determination, the              
          Commissioner must generally assume the burden of proof as to the            
          new matter.  A substantial body of case law has developed in this           


               10Rule 142 provides:                                                   
                    (a) General:  The burden of proof shall be upon                   
               the petitioner, except as otherwise provided by statute                
               or determined by the Court; and except that, in respect                
               of any new matter, increases in deficiency, and                        
               affirmative defenses, pleaded in the answer, it shall                  
               be upon the respondent.  As to affirmative defenses,                   
               see Rule 39.                                                           
               11Petitioner does not contend that respondent should be                
          precluded from relying on sec. 66(b).  Petitioner was on notice             
          before trial that respondent would rely on sec. 66(b).  The sec.            
          66(b) issue was tried by consent of the parties and is properly             
          before the Court.  See Rule 41(b).  Petitioner's only requested             
          relief is that respondent bear the burden of proof regarding this           
          issue.                                                                      




Page:  Previous  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  Next

Last modified: May 25, 2011