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Respondent now acknowledges that petitioner is entitled to
the benefits of community property law, unless those benefits can
be disallowed pursuant to section 66(b). Respondent argues that
invocation of section 66(b) is necessarily implicit in the notice
of deficiency. We disagree. The notice of deficiency makes
absolutely no mention of community property law, section 66(b),
or facts which would allow respondent to invoke section 66(b).
In the notice of deficiency, respondent determined that all of
Mrs. Shea's 1992 wage income was her separate income without
regard to community property law. Respondent also treated
interest on petitioner's and Mrs. Shea's joint bank account as
the separate income of petitioner without regard to community
property law. And, as previously mentioned, the notice of
deficiency contains no adjustment for the $119,204 that was
transferred from the business account to petitioner's and Mrs.
Shea's household checking account during 1992.13
Respondent failed to offer any evidence that indicated that
respondent considered the application of community property law
or section 66(b) in making his determination.14 In short, it
13As previously noted, respondent now acknowledges that
petitioner is entitled to the benefits of community property law
with respect to $119,204 of the 1992 STG net profit, regardless
of whether sec. 66(b) is otherwise applicable.
14Attached to petitioner's Motion to Shift Burden of Proof
is what purports to be a copy of the revenue agent's report for
(continued...)
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