- 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