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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.
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