John D. Shea - Page 16




                                       - 16 -                                         

               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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